New York City co-op and condo boards should be aware of new legislation recently signed by Govenor Andrew Cuomo that will make it easier for employees to make workplace sexual harassment claims – and harder for employers to defend against them. These sweeping changes are due to go into effect this month, and they apply to all employers in the state, regardless of size. How will they affect your co-op or condo, and how do you protect yourself from such claims?
The new law removes the prior requirement that claims had to be “severe or pervasive” in order to be actionable. This standard eliminated the bulk of cases at the summary-judgment stage of litigation. Now, a potential plaintiff merely has to show that he or she was subject to “inferior terms, conditions or privileges of employment” because of gender.
The legislation also removes a defense against sexual harassment claims commonly used by employers. Previously, employers could try to avoid liability for a hostile work environment if they took reasonable measures to prevent harassment and if the alleged victim failed to take advantage of the employer’s internal-complaint procedures. Now, an employer cannot avoid liability by claiming that the alleged victim failed to follow these procedures.
The legislation also extends the statute of limitations for bringing a sexual-harassment claim from one year to three. Further, an employer will be liable for the harassment of non-employees who provide services in the workplace. This could be a vendor, a contractor, or subcontractor working on a capital project or even on a temporary basis for your co-op or condo. If the co-op or condo is aware – or should have been aware – of the alleged harassment of this non-employee and fails to take action, it will be liable for the harassment.
Finally, there is a prohibition on confidential settlement agreements unless confidentiality is the preference of the victim, the victim is given at least 21 days to consider the provisions, and the non-disclosure provisions are written in “plain English.” One thing is clear: the bar to bringing an action for sexual harassment has definitely been lowered.
Andrew I. Bart is an attorney with Borah Goldstein Altschuler Nahins & Goidel.