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In 2000, New York City enacted the Gender-Motivated Violence Act (GMVA), N.Y.C. Code � 8-101, et seq. The GMVA went into effect Dec. 19 of that year. While the GMVA has now been in effect for a year, it has not yet been the subject of any reported judicial decision. Nevertheless, the GMVA has the potential to affect employer liability. On its face, the GMVA does not appear to constitute a source of new potential liability or remedies in the workplace, because it creates a cause of action that seems simply to duplicate the relief that is already available to victims of gender-motivated violence when it occurs in the workplace. However, it is not clear that the defenses ordinarily applicable to sexual harassment claims are going to be available to GMVA claims, and the seven-year statute of limitations that applies to claims under the GMVA presents the possibility that what appear to be time-barred sexual harassment claims can turn out to be real time bombs. Therefore, the GMVA warrants close attention from the employment bar in New York City. WHAT IS THE GMVA? The GMVA was enacted in response to U.S. v. Morrison, 529 U.S. 598 (2000), in which the U.S. Supreme Court struck down a similar federal law (the Violence Against Women Act, 42 U.S.C. � 13981) as beyond the scope of the constitutional powers that Congress had invoked in passing the federal law. New York City, believing itself free of similar restrictions, passed a modified version of that law as a city ordinance. SeeN.Y.C. Code � 8-902. The heart of the GMVA, N.Y.C. Code � 8-904, provides, “[A]ny person claiming to be injured by an individual who commits a crime of violence motivated by gender as defined in section 8-903 of this chapter, shall have a cause of action against such individual.” Section 8-903 defines “crime of violence” as “an act or series of acts that would constitute a misdemeanor or felony against the person as defined in state or federal law � if the conduct presents a serious risk of physical injury to another, whether or not those acts have actually resulted in criminal charges.” Sect. 8-903 also provides that such an act is “motivated by gender” if it is “committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender.” The statute of limitations is seven years. N.Y.C. Code � 8-905. The full gamut of relief available under the New York City Human Rights Law is available to the successful GMVA plaintiff: backpay, compensatory damages, punitive damages, attorney fees, and injunctive and declaratory relief. N.Y.C. Code � 8-904. To state a claim under the GMVA, it appears that a plaintiff would have to prove acts that constitute a misdemeanor or felony against the person, present a “serious risk of physical injury,” were engaged in because of the plaintiff’s gender, and were engaged in due to an animus against the plaintiff’s gender, plusresultant injury. The GMVA provides expressly that “random acts of violence unrelated to gender” are outside the scope of the ordinance. SeeN.Y.C. Code � 8-905(b) (“nothing in this chapter entitles a person to a cause of action for random acts of violence unrelated to gender or for acts that cannot be demonstrated, by preponderance of the evidence, to be motivated by gender”). It follows that in order to prevail, a GMVA plaintiff would have to prove that the conduct at issue was not only a crime (felony or any misdemeanor, so long as it constitutes a crime against the person), but also that it was committed because of the plaintiff’s gender. Personal conflicts, unrelated to gender, do not give rise to liability under the GMVA. The GMVA is silent as to whether proof that a crime was committed must be by the “beyond a reasonable doubt” standard generally applicable to criminal cases or the more lenient “preponderance of the evidence” standard. N.Y.C. Code � 8-906 says only that conviction of a crime is conclusive evidence in a GMVA case that a crime was committed. However, it is clear that proof that the crime was committed because of gender is established under the preponderance of the evidence standard. SIGNIFICANCE TO THE EMPLOYMENT BAR On its face, the GMVA does not appear to have much impact on workplace litigation. For example, sexual harassment cases generally do not involve violence, and when they do, proving sexual harassment does not require establishing that the acts at issue constituted a crime. Moreover, where the perpetrator of the harassment makes unwanted physical contact with the plaintiff, the victim usually will have a cause of action in tort for assault or battery. Therefore, most plaintiffs probably will be better off suing under Title VII, the New York State Human Rights Law or the employment provisions of the New York City Human Rights Law than under the GMVA. However, the GMVA is far from irrelevant to the workplace. For one thing, although the cause of action created by � 9-104 is against the individual who perpetrated the violence, it is not at all clear that an employer would be able to avoid liability because of this apparent limitation on the class of potential defendants where the gender-based violence occurs in the workplace under circumstances in which an employee otherwise might be able to impute respondeat superior liability to the employer. Nor is it clear, if respondeat superior liability could attach, that taking prompt, effective remedial action would constitute a defense to a GMVA claim, as it would with a hostile environment sexual harassment claim. It is also unclear that the defense available under the Workers’ Compensation exclusive remedy provision — which would be available to the employer in a case where one employee commits acts of physical violence against another employee — would defeat a GMVA action if the violence was motivated by gender-based animus. For example, in a case where a supervisor sexually assaults a co-worker and the employer fires the supervisor as soon as the victim complains, ordinarily the employer would have a Workers’ Compensation exclusivity defense to the victim’s tort action and a defense of prompt, effective remedial action to the victim’s sexual harassment action. It is an as-yet unanswered question whether those defenses would be valid as against a GMVA claim. In addition, the limitations period for GMVA claims is seven years. It is entirely possible that an employee who was the victim of gender-based violence in the workplace may surface years after the limitations period has expired on her sexual harassment claims, and years after all the employer’s witnesses have scattered or lost their memory of relevant events. The victim might nonetheless have a viable cause of action against the employer under the GMVA (and would definitely have a cause of action against the individual perpetrator of the violation) that would be difficult to defend. And the GMVA certainly creates the potential for individual liability where none presently exists under Title VII and where (for one reason or another) individual liability may not be imputed under the New York state or City Human Rights Laws. This also is possible with regard to supervisors who were not the perpetrator. See, e.g., Peddle v. Saywer, 64 F. Supp.2d 12, 18 (D.Conn. 1999) (under federal Violence Against Women Act, subsequently held unconstitutional, “supervisory officials may be personally involved in the alleged deprivation of rights where�the defendant, while acting in a supervisor capacity, either (a) failed to remedy the alleged wrong after learning of the violation, (b) created a policy or custom under which the unconstitutional practices occurred or allowed such policy or custom to continue, or (c) was grossly negligent or displayed deliberate indifference to the plaintiff’s rights in managing subordinates who actually caused the constitutional deprivation.”). AVOIDING LIABILITY What can employers do to avoid liability under the GMVA? Probably not much more than any ordinarily prudent employer already does to avoid liability for sexual harassment claims. The existence of a sound harassment-free workplace policy and any training efforts undertaken to implement that policy would likely go a long way toward helping the employer defend against potential GMVA violations. Thus, if nothing else, the GMVA makes such policies even more important than ever before. Moreover, the seven-year limitations period makes it more critical than ever for employers to get witness statements concerning possible acts of sexual harassment that involve physical contact, and to maintain good records concerning the location of former employees who may be needed as witnesses years after they cease working for the employer. Dennis A. Lalli is a partner with Kauff McClain & McGuire, http://www.kmm.com/, in New York, specializing in the representation of management in labor and employment matters.

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