Andrew I. Bart in Legal/Financial on August 15, 2019
The #MeToo movement has led New York State to make a dramatic overhaul of its workplace harassment laws. New York City co-op and condo boards should be aware of new legislation recently signed by Governor 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 in October 2019. How will they affect your co-op or condo, and how do you protect yourself from such claims?
First, the workplace harassment laws will apply to all employers in New York State, regardless of size. Whether your co-op or condo employs one superintendent or 100 staff members, all of these changes apply to you.
The new law lowers the standard for sexual harassment claims by removing the prior requirement that claims had to be “severe or pervasive” in order to be actionable. This standard, established in a series of U.S. Supreme Court cases, eliminated the bulk of cases at the summary-judgment stage of litigation. Now, a potential plaintiff won’t have to show that level of severity in order to have an actionable claim against his or her condo or co-op employer. An employee merely has to show that they were subject to “inferior terms, conditions or privileges of employment” because of their sex.
An employer can now raise the defense that the alleged conduct would be considered by a “reasonable victim” to be merely “petty slights or trivial conduct.” Does this mean that a single incident of questionable behavior – as opposed to a constant barrage of harassment – will be enough for someone to bring a successful case? What exactly is a “petty slight”? It is all very unclear at this point, but one thing is certain: the bar to bringing an action has definitely been lowered.
The legislation also removes one prong of 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. For example, if your superintendent claims he was subject to a hostile work environment but failed to take advantage of the complaint procedures clearly set forth in your employment handbook, he may, under this new law, still have a viable claim.
The legislation also extends the statute of limitations for bringing a sexual-harassment claim in the courts or before an administrative agency from one year to three. This will likely lead to a greater number of sexual harassment claims being filed.
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.”
There are other changes too numerous to address in this article. To best protect your co-op or condo from what could be a tsunami of harassment claims, you need to educate yourself about these changes and consult an attorney. Do not leave your co-op or condo vulnerable to claims by assuming that you can handle this new environment without legal representation and consultation.
Andrew I. Bart is an attorney with Borah Goldstein Altschuler Nahins & Goidel.
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