State lawmakers in New York are considering a sweeping new set of reforms aimed at curbing sexual harassment in the workplace after hearing testimony from victims, officials within state government and other stakeholders in Albany on Wednesday.
It was the first hearing on the issue held by the Legislature in more than two decades, according to Democrats who organized it after encouragement from advocates last year.
Several different ideas were suggested by lawmakers and witnesses during the hearing on how the state could build on last year’s package of sexual harassment legislation, which has largely set a national standard for handling such claims.
That package established a statewide baseline sexual harassment policy developed by the state Department of Labor last year for employers to adopt. It also largely banned the use of mandatory arbitration to resolve claims of sexual harassment and prohibited nondisclosure agreements in those cases unless requested by the alleged victim.
But victims of sexual harassment said Wednesday that several challenges still remain for those attempting to confront their harasser, either internally, through litigation or by reporting the behavior to an appropriate agency.
While the state’s laws have created stronger standards for companies to follow, little was done in last year’s legislative package to bolster litigatory efforts by alleged victims of sexual harassment. State Sen. Andrew Gounardes, D-Brooklyn, raised the possibility of limiting the power of a common defense used by employers in state courts to dismiss claims of sexual harassment referred to as the Faragher-Ellerth defense.
“We can’t rest our laurels on just saying we’re talking to employers or making sure they’re complying with providing the policy because that is nowhere near enough to solve this problem,” Gounardes said.
The defense was created from two different U.S. Supreme Court decisions. Those rulings found an employer is not liable for sexual harassment if they can show the employee didn’t follow the employer’s policy for addressing inappropriate behavior, take the directed steps during an investigation, or comply with other standards established by that procedure.
“My concern is if we’re going to be touting and celebrating that we’re making everyone have a policy and we’re sending all these people into court to vindicate their civil rights, and the courts are just shutting down access to them,” Gounardes said.
He suggested that state lawmakers could approve legislation that would eliminate or significantly reduce the power of that defense in dismissing claims of sexual harassment. That’s already been done in New York City, according to Dana Sussman, deputy commissioner of policy and intergovernmental affairs at the city Commission on Human Rights. State lawmakers, Sussman said, could set a similar standard statewide that would weaken the Faragher-Ellerth defense.
“The state can, I believe, create their own liability standards around strict liability or supervisor liability because those Supreme Court decisions were, in particular, looking at federal civil rights law,” Sussman said.
The only reason litigants can use the defense in state courts to dismiss sexual harassment claims is because the Legislature hasn’t approved a new liability standard to mirror the state’s human rights laws, according to Sussman. Victims of sexual harassment who testified at the hearing labeled the defense as problematic to the state’s goals of addressing that behavior.
“This defense unfairly puts the burden on victims, even when the employer’s policy does not prevent harassment,” said Erica Vladimir, a former employee of the state Senate who alleged sexual harassment by former State Sen. Jeffrey Klein, D-Bronx, last year.
Vladimir is one of a handful of former legislative staffers who testified before lawmakers at the hearing Wednesday about their own experiences with sexual harassment in state government. Those victims, called the Sexual Harassment Working Group, started the call for hearings on sexual harassment last year.
They’ve issued their own recommendations for how lawmakers could build on last year’s laws, including a new definition for sexual harassment in state law. It’s now defined as behavior that is considered “severe or pervasive,” based on federal case law. They want it to be changed to the definition used in New York City, which is when someone’s behavior makes someone feel “less well” based on their gender or perceived gender.
“It is a really high bar. It means that something like a forcible kiss would not rise to the level of so severe,” Vladimir said. “We’ve seen some cases come out of New York, even as recently as 2018, where certain instances of groping and continuously inappropriate language in a workplace did not rise to the level or severe of pervasive either.”
Another legislative proposal would give victims of sexual harassment more time to file a complaint with the state Division of Human Rights, which reviews and adjudicates such claims. Victims in both the private and public sectors currently have one year to file those claims with the agency, but a bill by Sen. Brad Hoylman, D-Manhattan, would extend that period to three years. That’s the same amount of time victims have to bring a lawsuit over sexual harassment in state court.
“I think it’s something that we need to revisit as a legislative body,” Hoylman said. “Other states are looking at how to extend the statute of limitations to allow survivors to file these claims. We know it takes a long time to process the fact that someone has been harassed in the workplace.”
Hoylman’s bill is one of several already introduced this year by lawmakers, many of which are sponsored by Sen. Alessandra Biaggi, a freshman Democrat from Westchester County. Biaggi met with members of the Sexual Harassment Working Group last year to craft a handful of bills before she took office. Those will be considered alongside other proposals that are expected to come out of testimony from Wednesday’s hearing.