On January 2, 2018, New York Governor Andrew Cuomo announced his plan to “Combat Sexual Harassment in the Workplace”. Cuomo’s agenda includes a multi-faceted approach that would affect both governmental and private employers. It includes at least five measures to address workplace sexual harassment in New York.

Introducing these initiatives, Governor Cuomo stated:

“2017 brought a long overdue reckoning where the secret and pervasive poison of workplace sexual harassment was exposed by brave women and men who said this ends now. Our challenge in government is to turn society’s revulsion into reform, and we in New York must seize the moment and lead the way. There must be zero tolerance for sexual harassment in any workplace, and we can and will end the secrecy and coercive practices that have enabled harassment for far too long.”

Though there are already pending bills that pursue similar objectives, the Governor has only laid out his specific agenda relatively generically. So let’s just take a preliminary look at how he seeks to change New York employment law.

Note: In this post I raise questions and suggest some downsides to these proposals. That certainly does not mean that I’m opposed to combating workplace sexual harassment. The employers I work with would welcome more effective means of preventing sexual harassment. But this is a very difficult area to legislate, with the potential for many undesirable consequences. So, I think it’s valuable to give them some thought and critical analysis.

Prevents Use of Taxpayer Dollars to Fund Individual Sexual Harassment Settlements

It’s not yet clear how far this proposal intends to go. Would it be limited to harassment claims against elected State officials? Or would it extend to all claims based on the actions of governmental employees at every level of government in New York?

The latter approach could be particularly game-changing. Employees claiming employment discrimination in the form of sexual harassment usually name their employer directly. In fact, under Title VII (the federal law that prohibits workplace sexual harassment), individual employees can’t be held liable. Even though the New York Human Rights Law permits individual liability in some situations, employees almost always include the employing entity itself in lawsuits.

What happens if an individual doesn’t have enough money to settle a sexual harassment claim? Does the governmental employer still have to defend the claim, perhaps without the ability to settle? Can a governmental entity still be liable and responsible for paying damages to an aggrieved employee?

There are many complicated aspects to what seems like a straightforward policy matter. Is it feasible to implement this approach? We’ll see.

Proposes Uniform Code of Sexual Harassment for All Branches of State and Local Government

Presumably, this would essentially write a new sexual harassment policy, with consistent complaint procedures, for all governmental employers in New York.

Notably, this proposal includes an “anonymous whistleblower process to help individuals communicate complaints across state and local government without fear of retribution or consequence.”

One can reasonably question how effectively employers can respond to anonymous sexual harassment reports. Even assuming the report names the alleged perpetrator, a good investigation usually begins with speaking with the victim of harassment. If the employer doesn’t know who that is, then they may have little to go on other than asking the named employee whether they have sexually harassed anyone. That may not yield tremendous results.

Hopefully any such initiative would recognize the value of victim involvement in the investigation of sexual harassment. Emphasizing existing anti-retaliation laws, for example, should be a valuable component.

Prohibits Confidentiality Agreements Relating to Sexual Assault or Harassment for All Branches of Government — State and Local — Unless Express Preference of the Victim

This addresses the concern that employees often agree not to discuss their claims in exchange for a financial settlement. Reasonably, the risk is that the perpetrator may commit further harassment because the previous victim could not warn everyone else.

From my experience, in most employment discrimination cases the employer is less concerned about the employee telling others what actually happened to them. They are more concerned about the employee telling others that they received money to go away. This is a valid fear where the employer credibly doesn’t think it did anything wrong, but doesn’t want to spend years litigating the employee’s claim. . . . And also doesn’t want every other unhappy employee, or more often former employee, to come seeking the same payout.

So, one potential downside to this rule would be a greater reluctance to settle cases. Without the confidentiality agreement, the defendants may perceive even greater value in litigating cases out to a decision by judge or jury. If everyone will know about the allegations (and assuming the defendant reasonably believes they did nothing wrong), then the defendant may be better off proving their innocence.

The proposal does purport to permit confidentiality agreements upon the “express preference of the victim”. One might question how to make that a workable standard. What’s the difference between an employee agreeing to confidentiality (as they must usually do now) and demonstrating an “express preference” for it? Will this just mean that the defendant can agree to observe confidentiality, but not the complaining employee?

Mandates Private Companies That Do Business with the State Report Sexual Assault and Harassment Statistics to Prevent Secrecy

We don’t yet know the scope of which companies would be covered or what exactly they must report.

Happily, the majority of companies that do business with the State probably won’t have any incidents to report. But some will. How many will depend on how those terms are defined, etc.

How will the State use this data? Will it cancel the contracts? Pursue litigation? Issue press releases?

Again, the details will matter.

Voids Forced Arbitration Policies or Clauses in Employee Contracts that Prevent Sexual Harassment Cases from Consideration in Law Enforcement Investigation and Trials

Frankly, it’s already unlikely that any arbitration policy or clause in employee contracts would prevent “law enforcement investigation” of sexual harassment cases . . . . Even to the extent that includes investigation by the New York State Division of Human Rights or the federal Equal Employment Opportunity Commission. The National Employment Law Project, a prominent employee-rights group, through its Senior Counsel Patricia Smith (former New York Commissioner of Labor under Governors Eliot Spitzer and David Paterson and U.S. Solicitor of Labor under President Obama), has also acknowledged this, along with expressing some doubts about other aspects of the proposal.

Thus, the primary effect of this piece of the legislation (if enforceable despite potential federal preemption arguments) would be to preserve employees’ default rights to go to court with a claim of workplace sexual harassment. It at least seems fairly straightforward, with few unintended consequences to victims of sexual harassment. Most likely, employees could still readily agree to arbitrate sexual harassment cases if they want to and employers are interested.

What New York Employers Should Already Be Doing to Combat Workplace Sexual Harassment

Again, my scrutiny of the Governor’s announced agenda only means to acknowledge the difficulty of addressing this serious issue. With or without new State legislation, all New York employers should be proactive in avoiding sexual harassment.

Keep in mind: the New York State Human Rights Law prohibits workplace sexual harassment for all New York employees. Other aspects of the State employment discrimination law only apply to employers with at least 4 employees. But the sexual harassment provisions apply to every employer.

For now, here are some basic elements every employer should implement to combat workplace sexual harassment:

• Anti-harassment policy
• Training all employees
• Additional training for supervisors
• Effective complaint procedures
• Designated compliance officers
• Prompt investigations
• Effective remedial action

I will continue to monitor these proposals and the related legislation. To make sure you don’t miss any important updates, sign up for my email newsletter!