Advocacy Group Seeks Reforms to Sexual Harassment Laws in New York State

New York sexual harassment attorneys can choose from among several employment statutes dealing with sex discrimination. This gives the city some of the most robust employee protections in the country, and yet sexual harassment and other unlawful workplace practices remain serious problems. An advocacy group seeking to improve the state’s sexual harassment laws has announced its support for several pending bills in Albany over the past year, including a bill that targets harassment by individuals working in government. Another bill would address ambiguity in the legal standard for unlawful harassment. Both bills are currently pending in State Assembly or Senate committees.

New York State Sexual Harassment Law

The New York State Human Rights Law (NYSHRL), N.Y. Exec. L. § 290 et seq., prohibits employers from discriminating on the basis of sex and numerous other factors. Sexual harassment is considered unlawful sex discrimination in two scenarios. First, quid pro quo sexual harassment occurs when a person must submit to some sort of sexual demand as part of their employment. The demand can range from tolerating inappropriate remarks or jokes to sexual activity. The second form of sexual harassment occurs when unwelcome sexual conduct is severe or pervasive enough to create a hostile work environment.

Pending Legislation

A group known as the Sexual Harassment Working Group is promoting several pending bills that take on deficiencies in state law.

Definition of “Employer” in New York

Currently, the NYSHRL does not define the term “employer,” except to specify the number of employees required for the statute to apply. See id. at § 292(5). A bill currently pending in the New York State Legislature, A8847/S6828, would amend the statute to fix the “personal staff” loophole.

The bill’s memo states that the law would establish the State of New York as the employer of “anyone serving in the executive, judiciary, and legislative branches, including the staff of elected officials or judges.” It further states that several courts, in the absence of clear language in the NYSHRL, have relied on the text of Title VII of the Civil Rights Act of 1964. The federal statute excludes the United States from the definition of “employer,” and “any person elected to public office…or [their] personal staff” from the definition of “employee.” 42 U.S.C. §§ 2000e(b)(1), (f).

“Severe” or “Pervasive” Standard

The U.S. Supreme Court first recognized sexual harassment as sex discrimination in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). While that decision involved federal antidiscrimination law, it has influenced decisions applying New York law for decades. Meritor established the “severe or pervasive” standard in sexual harassment cases. Many judges, however, reportedly interpret the standard as requiring proof that unwelcome conduct was both severe and pervasive.

A7083/S3817 would, among other changes to state law, eliminate the “severe or pervasive” requirement. As currently drafted, the bill would make harassment on the basis of a protected category unlawful unless the employer could establish “that the harassing conduct does not rise above the level of petty slights or trivial inconveniences.” This is a deliberate choice of language, since the Equal Employment Opportunity Commission uses the term “petty slights or trivial inconveniences” to describe what does not constitute unlawful harassment.

The experienced and knowledgeable employment attorneys at Phillips & Associates fight for the rights of job applicants, employees, and former employees in New York City, representing them in sexual harassment claims under federal, state, and city laws. To schedule a free and confidential consultation to discuss your case, please contact us today online or at (212) 248-7431.

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