Outlawing Sexual Harassment

New legislation could leave employers liable for sexual harassment directed toward anyone providing a service in the workplace.
By: | May 17, 2018 • 5 min read
Topics: Employment Law
sexual harassment prevention with anti-sexual harassment protections

Last month, New York Gov. Andrew Cuomo signed a bill that expands the state’s anti-sexual harassment protections for non-employees and could leave employers liable for sexual harassment directed toward subcontractors, vendors, consultants or any other individual providing services in the workplace.

Effectively immediately, the legislation mandates that employers could be held responsible if the company, its agents or supervisors were aware or should have been aware that any of these non-employees were subjected to sexual harassment and the organization did nothing to address it.

The new law also dictates that, as of Oct. 9, 2018, employers must conduct annual sexual harassment prevention training and distribute a written sexual harassment prevention policy to employees. And, in July of this year, nondisclosure provisions in settlement agreements pertaining to sexual harassment claims will be prohibited, unless the complainant wishes that such stipulations be included.

Also in April, the New York City Council passed the Stop Sexual Harassment in New York City Act, a package of bills that requires employers with 15 or more employees to provide annual training designed to prevent sexual harassment. The Act, which Mayor Bill de Blasio is expected to sign soon, also extends the statute of limitation to file harassment claims from one year to three years.

Advertisement




Meanwhile, in Pennsylvania, Gov. Tom Wolf has voiced his support for a package of legislation with similar aims. For example, Pennsylvania lawmakers have proposed lengthening the time in which victims and whistleblowers can file a sexual harassment claim in court from 180 days to two years. If passed, the legislation would also allow these individuals to seek punitive damages in workplace discrimination cases.

As a Boston-based partner in Nixon Peabody’s labor and employment group, David Rosenthal says he “cannot speak to the likelihood of any particular bill passing” in either New York or Pennsylvania. But he does foresee some type of sexual harassment prevention legislation being passed in most states.

“The #MeToo movement and the political fallout from high-profile cases have made these laws a political priority,” says Rosenthal. “And, to the extent that a state has not previously passed legislation on this topic, or the existing laws do not make harassment training mandatory, we can expect new legislation to pass [that] does at least that much.”

Rosenthal also anticipates legislation removing exemptions that existing laws provide for governmental agencies.

“Governmental agencies and offices, because they are so hierarchical, and because there are so many power imbalances, are ripe for this kind of misconduct.”

Sarah Bouchard, a Philadelphia-based partner at Morgan, Lewis & Bockius, points out that several states – California, New Jersey, New York and Pennsylvania, for instance – have already passed or introduced bills prohibiting agreements that restrict public disclosure of harassment allegations.

Advertisement