The New York Human Rights Law prohibits sexual harassment in all workplaces across the state. The law also bans other forms of discrimination and harassment by employers with at least 4 employees. But, in 2015, the law was amended to extend the protection against sexual harassment to all employers of any size.
Under federal law, Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, including sexual harassment, in employment in organizations with at least 15 employees.
Treating New York Sexual Harassment Differently
The Sponsor’s memorandum proposing that sexual harassment be prohibited in all workplaces emphasized New York’s historic role in promoting women’s rights:
“New York State has a proud history and tradition of leading the nation in progressive ideas and reforms, especially in respect to women’s rights. In 1848, the Women’s Suffrage Movement was born at the first Women’s Rights Convention in Seneca Falls, New York. From that moment in time, and continuing through today, this State has been the home of female leaders and visionaries, from Elizabeth Cady Stanton who initiated the first organized women’s rights and women’s suffrage movements, to Audre Lorde, a leading African American poet and essayist who gave voice to role models for not only their generation, but for all future generations.”
It then expressed concern that the State should renew this tradition:
“Over the years, New York has fallen behind in its role as a progressive leader on women’s rights. Statistics clearly show that women in New York State are not treated equally to men. This legislation will reverse that trend.”
What Is “Sex”?
The New York sexual harassment law may also be broader than federal laws, as State regulations now expressly define the term “sex” to include gender identity and the status of being transgender.
Indeed, the State regulations specifically provide that “Harassment on the basis of a person’s gender identity or the status of being transgender is sexual harassment.”
Forms of Sexual Harassment
Under the Human Rights Law and Title VII, there are two forms of sexual harassment:
“Hostile work environment” harassment consists of comments, acts, conduct, behavior, etc., of intimidation, humiliation, or ridicule of a sexual nature or based on an individual’s sex. For more, read What Makes Workplace Harassment Unlawful?.
“Quid pro quo” harassment involves a request for sexual activity in exchange for favorable job treatment. Whereas a hostile work environment can exist based on any protected characteristics (e.g., race, religion, age), quid pro quo harassment can only apply to sexual harassment.
When Is an Employer Liable for Sexual Harassment?
Employers are strictly liable when an owner or high-level manager commits unlawful harassment. This means the employer cannot defend itself by arguing it was not aware of or responsible for the harassment. (It could still contest whether harassment occurred.)
Employers may also be strictly liable for sexual harassment by lower-level managers and supervisors with sufficient control over the working conditions of the victim.
In cases of harassment by coworkers or lower-level managers with no direct control over the victim’s working conditions, employers may only become legally responsible when they knew or should have known about the harassment. For example, if an employee reports harassment by a co-worker, and it nonetheless continues, then the employer may be liable.
The best approach is to take reasonable precautions and prevent sexual harassment before it happens. This primarily occurs through training of all employees, including supervisors.
But employers do not always have perfect control over what their employees do. So when there is concern that someone has crossed a line, the employer must act prudently to ensure that the behavior stops. The first step to accomplishing this is having an effective complaint procedure. The second step is investigating all complaints thoroughly. The third step is taking appropriate remedial action based on the investigation.
[Sign up for my free webinar on Investigating Workplace Harassment Complaints Without Making It Worse.]
The New York Human Rights Law, unlike Title VII, also permits individuals to be found directly liable for sexual harassment. This can affect both employees who commit sexual harassment and supervisors who ignore their duty to investigate and remedy it.
When employers receive complaints of sexual harassment, they must ensure that no one retaliates against the person who made the complaint, the victim of harassment, or any other employees involved in bringing the complaint forward.
Investigators must remind the subjects of harassment investigations that they cannot retaliate. Any retaliation that nonetheless occurs must be taken seriously.
Retaliation includes any negative action, not just formal job-related consequences. It can even include action outside of the workplace and things done after the employee has left employment.
Employees have up to 3 years to file sexual harassment claims in New York. Under the Human Rights Law, an aggrieved employee can recover lost wages and benefits (backpay and frontpay), emotional distress, and compensatory damages. Unlike Title VII, the Human Rights Law does not cap potential emotional distress damages. However, the Human Rights Law does not provide for punitive damages like Title VII does.
Generally, attorneys’ fees are not available under the Human Rights Law’s employment provisions. However, recent amendments now permit the prevailing party to obtain an attorney’s fee award in sex discrimination cases only. This includes New York sexual harassment cases.
No employer wants to deal with allegations of sexual harassment. But even the best-run organizations must be proactive to avoid it.
This includes having a well-written anti-harassment policy and conducting periodic training. It also includes being ready to investigate promptly and effectively.
Individuals within an organization who are responsible for investigating sexual harassment should obtain appropriate training. One resources is this free webinar, where I discuss My Top 7 Tips for Performing this Unenviable Task That Everyone Wishes Wasn’t Necessary