Proposed Changes to New York State’s Sexual Harassment Law

The New York State legislature is in the process of reviewing/amending the New York State Human Rights Law regarding sexual harassment. The bill(s) under consideration are S3817A / A7083A.

Currently, victims of sexual harassment in New York City enjoy protection under three statutes:

  • Title VII of the Civil Rights Act of 1964 (federal law),
  • the New York State Human Rights Law (NYSHRL) (state law), and
  • the New York City Human Rights Law (city law).

Of the three, the New York City Human Rights Law is the broadest. However, in cases where that statute does not apply, plaintiffs must rely on either federal or state law, and are limited to the latter where the employer does not have enough employees to be considered an “employer” within the meaning of Title VII.

In order to make out a claim for sexual harassment under Title VII (and, in its current form, the NYSHRL), a plaintiff must show, inter alia, that the harassment was “severe or pervasive” – a relatively high standard.

In addition, under both federal and state law, an employer accused of sexual harassment may avail itself of an affirmative defense – called the “Faragher/Ellerth defense” – if (in sum) it can prove that (1) the employer took reasonable measures to correct and prevent sexual harassment, and (2) the employee unreasonably failed to utilize such measures.

The legislative changes currently under discussion, inter alia, take aim at both of these requirements.

For example, S3817A’s section 2: “extends protection to discriminatory and to retaliatory harassment based on all protected categories; eliminates the ‘severe or pervasive’ standard from discriminatory and retaliatory harassment cases … [and] functions to eliminate part of the Faragher/Ellerth defense.”

If, as it is hoped, they become law, they will make it easier for victims of sexual harassment to prove their claims in court under the New York State Human Rights Law.

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