New York Rewrites Harassment Laws, but Some Say the Changes Fall Short

By Vivian Wang

ALBANY — New York will ban most nondisclosure agreements and mandatory arbitration in sexual harassment complaints, and will require government employees found responsible for committing harassment to refund any taxpayer-financed payouts, according to a revision of state laws adopted by the Legislature on Friday.

Senator Catharine Young, a Republican from western New York who helped write the Senate’s original draft of the bill, called the measures “a major victory.”

“We’re going to protect everyone across the board, so I’m very very enthused about the fact that we have gotten it done,” she told reporters on Friday.

But the failure of the bills to actually define sexual harassment led some women’s rights advocates and employment lawyers to warn that the policies could be narrowly interpreted. They said the language should have incorporated a more expansive understanding of gender-based discrimination, as well.

A group of seven women who had previously worked as staff members in the Legislature and have publicly accused legislators of sexual harassment called the bill “ill-conceived and incomplete,” adding that true progress “must include listening to the victims who have actually endured the process.”

Several lawmakers also lamented the lack of transparency in the negotiation process, which did not include public hearings.

Senator Liz Krueger, a Democrat from Manhattan who has been vocal about the need for stricter policies, equivocated in her support, calling the bill “a really good try.”

Still, the bill passed the Senate unanimously, and an identical version passed the Assembly. It will go to Gov. Andrew M. Cuomo, who is expected to sign it into law.

The bill will cover both the public and private sectors, requiring employers to develop anti-harassment policies and training and barring the state from awarding bids to any company that failed to comply. It would also extend protections to independent contractors who might not be defined as employees. The new policies allow for publicly-funded payouts for substantiated claims of harassment against state employees, but would require them to reimburse the government within 90 days.

The bill does not, however, address settlements in which there is no formal finding of liability. In 2015, the state paid $545,000 to settle harassment claims related to a former assemblyman from Brooklyn, Vito Lopez.

The bill also does not address longstanding criticisms of the Joint Commission on Public Ethics, a committee made up in large part by members appointed by the governor. The group is investigating several high-profile harassment claims but has often been called toothless. Mr. Cuomo had suggested creating a new arm within the commission specifically to investigate harassment complaints, but Ms. Young said on Friday that it was unclear where that proposal stood, or if there would be money available to pay for it.

Ms. Young conceded that the wording of the new policies would not necessarily cover other forms of gender-based harassment, such as inappropriate comments. But she defended the need for a flexible definition of harassment, citing how quickly understandings of acceptable behavior have evolved in recent months in the wake of the #MeToo movement.

A stricter sexual harassment policy was one of just a few policy issues to be included in the budget talks. New York’s push mirrored those in many other state legislatures: 29 states have introduced new sexual harassment bills in 2018, according to the National Conference of State Legislatures, which called the number of proposals “unprecedented.”

But in Albany, as usual, policy quickly became inextricable from politics.

While lawmakers in both parties, as well as Mr. Cuomo, had agreed in principle on the need to formulate new policy — a rare point of consensus in the Capitol — the actual negotiations turned out to be anything but unifying.

Women’s rights advocates denounced Albany’s secretive model of budget negotiations, which they said would allow the new policies to be hammered out by “four men in a room”: Mr. Cuomo and three legislative leaders, including Senator Jeffrey D. Klein — who was accused in January of forcibly kissing a former staffer, Erica Vladimer.

Senate Democrats, who are a minority in the chamber, denounced their exclusion from the closed-door negotiations, which came after the governor’s office said in February that their conference leader, Senator Andrea Stewart-Cousins of Westchester, would be included in discussions.

On Wednesday, asked why Ms. Stewart-Cousins had not been privy to the leaders’ meetings, Mr. Cuomo told reporters that the new policies were being formulated not by the four men but by a “working group” for which Senate Democrats had been invited to provide input. But Ms. Stewart-Cousins said no such group existed.

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An overview of federal and New York state laws governing sexual harassment and assault.

Employers and employees are becoming more and more of the instances of sexual harassment in the workplace and other areas. It is covered by Federal, State, and City laws in New York as a form of discrimination under human rights laws. Sexual harassment can also rise to the criminal law level if certain elements are present.
Federal Law

The federal law governing sexual harassment is Title VII of the Civil Rights Act of 1964 the anti-discrimination act governing workplaces and other public areas. This type of harassment falls under gender discrimination. A claim for sexual harassment in the workplace can be filed with the Equal Employment Opportunity Commission (EEOC) if the activity occurs in a place with more than 15 employees.

The EEOC and the New York Human Rights law have categories for two-forms of sexual harassment, quid pro quo and hostile work environment.
Quid Pro Quo

The easiest to understand perhaps is the quid pro quo form of harassment. This means that something is given for something in return. A person can be told, for instance, that they would be more likely to be promoted if they granted their immediate superior sexual favors. Conversely, if an employee rejects sexual advances from a boss or superior and suddenly loses their job or is demoted they have possibly suffered from sexual harassment.
Hostile Workplace

The other form of harassment is a “hostile workplace”. In a hostile workplace occurs when unwelcome verbal or physical sexual conduct unreasonably interferes with the victim’s ability to do his/her job or creates an offensive or intimidating environment on the job.
New York State Law

The state of New York and also the City of New York have their own regulations which can apply to companies that have as few as two employees. The state law is embodied in the New York State Human Rights Law (HRL).

The New York City Human Rights law on sexual harassment is located in Title 8 of the city’s administrative code.

§ 8-602 Civil Action to enjoin discriminatory harassment; equitable remedies.

§ 8-603 Discriminatory harassment; civil penalties.

§ 8-604 Disposition of civil penalties.
Criminal Law

Sexual harassment can fall under the New York Penal Code if it involves the following elements:

Forcible touching which occurs which a person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading

Criminal Sexual Act when a person engages in oral or anal sexual conduct with another person without that person’s consent. This can be charged in the First Degree when there is force used, a Class B felony. It would be charged in the Third Degree when the person has inability to consent, a Class E felony.

Sexual Abuse occurs when a person subjects another to sexual contact without consent. This can be charged in the First Degree when it is done by force, a class D felony. It would be charged in the Third Degree when it is done without consent, a class B misdemeanor.

Persistent Sexual Abuse is charged when a person has committed sexual abuse, Third degree or forcible touching and had been previously (within the last 10 years) convicted two or more times and sentence imposed, a class E felony.

The NY Penal Code §130.00 through §130.90 set out the criminal sexual offenses in New York.
What to do when harassed?

When an employee or other person suffers sexual harassment the first step they should take is to follow their employer’s guidelines for reporting it. There is a law against any retaliation to an employee who has reported incidents of sexual harassment. A complaint needs to filed with the EEOC before 300 days have elapsed after the last incident. The next step is to speak with an employment attorney about filing federal, state and city complaints.

These are the New York and Federal offices that can help with a sexual harassment issue:

Office of the NYS Attorney General

Civil Rights Bureau

120 Broadway, New York, NY 10271 (212) 416-8250 [email protected]

U.S. Equal Employment Opportunity Commission

1-800-669-4000 1-800-669-6820 (TTY) [email protected] eeoc.gov

NYS Division of Human Rights

http://www.dhr.ny.gov 1-888-392-3644

NYC Commission on Human Rights

(NYCCHR)

311 or 212-306-7450 http://www.nyc.gov/html/cch

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