19

August, 2021

The Lines Have Been Redrawn; “Build Back Better” with Respectful Workplaces in New York

By Tracey I. Levy

Perhaps one of the most troubling quotes coming out of the investigation of sexual harassment allegations raised against Governor Andrew Cuomo was his statement, “In my mind, I’ve never crossed the line with anyone, but I didn’t realize the extent to which the line has been redrawn.”  He added, “There are generational and cultural shifts that I just didn’t fully appreciate.”

Indeed, there have been “generational and cultural shifts,” which were accelerated by the #MeToo movement.  The lines have been redrawn, expectations have shifted, and many organizations began revising their policies and practices years ago to hold employees to a higher standard of acceptable workplace behavior.  The law itself shifted substantially in New York State beginning in 2019, and employees (particularly managers) who do not recognize that shift now present a liability issue for their organizations.

Formerly, harassment was defined by the courts in New York, which looked to federal law to provide a wordy definition, considering, with respect to unwelcome conduct based on a protected characteristic, whether submitting to the conduct was made explicitly or implicitly a term or condition of an individual’s employment; submitting to or rejecting the conduct was used as the basis for employment decisions affecting an individual; or the conduct had the purpose or effect of “unreasonably interfering” with an individual’s work performance or creating an “intimidating, hostile or offensive” working environment, with the final element requiring consideration of whether the behavior was so severe or pervasive as to rise to the level of actionable harassment.  The standard is a mouthful to recite, hard to memorize, and overwhelming on a powerpoint slide.

In 2019, as part of Governor Cuomo’s “Women’s Justice Agenda,” the governor signed into law sweeping changes with regard to the legal standard and enforcement provisions for claims of sexual harassment.  Significantly, the law adopted a new, far simpler definition of sexual harassment (which was subsequently broadened to harassment based on other protected characteristics), as subjecting an individual “to inferior terms, conditions or privileges of employment based on” a protected characteristic.  Not only is the new standard pithy, but the law then expressly goes on to state that an individual need not show that the behavior is severe or pervasive.  Rather, it is for the employer to demonstrate that the conduct was nothing more than a “petty slight” or “trivial inconvenience.”  The legal bar for asserting unlawful harassment dropped precipitously with the new law, and the governor’s press release at the time expressly quoted him trumpeting that change: “By ending the absurd legal standard that sexual harassment in the workplace needs to be ‘severe or pervasive’ and making it easier for workplace sexual harassment claims to be brought forward, we are sending a strong message that time is up on sexual harassment in the workplace and setting the standard of equality for women.”

So how could the very individual who made these legal changes a centerpiece of his legislative agenda have fallen so far short in his own behavior?  Why, in 2021, are we still so fervently teaching the lessons of #MeToo, and how can we effectuate lasting change?  These are the questions that keep me up at night, and that I mull over at random hours.  How do we “build back better” when it comes to workplace culture?

I have no magic antidotes, but certain elements are important in progressing toward a more comfortable workplace.

Commitment from Senior Leadership

As with so many other organizational changes, there needs to be buy-in from the top.  If senior leadership shares the New York governor’s perspective, little if anything will change in their organizations.  Senior managers need to lead by example – both in articulating a commitment to providing a respectful workplace, and in conducting themselves publicly and privately in a manner that comports with that articulated standard.

Putting Sidewalks Around the Law

Preventing harassment based on sex and other protected characteristics is the legal standard.  But when that is our only goal, we end up quibbling about whether an individual’s behaviors do or do not exceed the level of a “petty slight” or what we mean by a “trivial inconvenience.”  Organizations should aim for something broader – offering a “respectful” workplace to employees and everyone else in the workplace.  We need to define what we mean by “respectful,” and that definition should both embody and exceed the legal standard.  Perhaps that means that an organization equally prohibits bullying behavior, which is not singling someone out based on a protected characteristic, but which most certainly can create an uncomfortable or intimidating work environment.  Or perhaps the organization wants to define expectations with regard to how employees communicate with one another – that such communications should be civil, and that employees should be able to articulate their perspective and have their views duly considered.  Alternatively or additionally, employers might address respectful behavior in terms of collaboration, and fostering a team environment where individuals feel supported.  The common and essential component of all these definitions is that they put “sidewalks” around the law by setting forth standards that embody and exceed the current legal standard.  When our goal is broader than the legal standard, the harassment takes care of itself so to speak, in the sense that it is definitionally inconsistent with and therefore should not be occurring in a truly “respectful” work environment.

It Takes a Village

Managers cannot single-handedly root out harassing behavior or impose a culture of respect, nor can any individual or series of complaints give rise to lasting organizational change.  Rather, an organization needs to encourage, empower, and perhaps even mandate that its employees go from bystanders to “upstanders.”  Here the New York City subway safety tagline is most apt – “if you see something, say something,” and that is the mantra to be inculcated throughout the organization.  But it is not sufficient to adopt a catchy refrain.  Employees need to be trained – on what the standards and expectations are for measuring appropriate behavior, about how they can intervene, and on where to submit concerns.  The New York State or New York City versions of the mandatory harassment prevention training programs are not sufficient for that purpose.  Rather, targeted messages, specific to those expectations, need to be communicated to employees and then reinforced at periodic intervals.

You May Need to Change

At times, a manager will seek to excuse questioned behavior with a comment along the lines that the manager is “no different than I was when I started working here,” however many years ago that may have been.  In a nutshell, the manager’s comment precisely illustrates the problem.  The lines have been redrawn.  We are holding employees, and everyone in the workplace, to a higher standard than was the case in 2017.  But that higher standard may not be the optimal objective from a cultural perspective.  Creating a comfortable, respectful workplace requires organizations to do more.  In doing so, an organization may also reap manifold benefits in employee morale, retention, and productivity, as well as reputation, that “build back better” and even help the organization’s bottom line.

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12

August, 2019

New York State Amends Other HRL Discrimination Protections – Broad Protections Expanded Well Beyond Sexual Harassment

By Tracey I. Levy, Esq. and Alexandra Lapes, Esq.

Just over a year after New York enacted sweeping protections against sexual harassment, Governor Cuomo today signed into law further amendments to the New York State Human Rights Law to provide more expansive protections for employees based on any protected characteristic.

SPECIAL ALERT – IMMEDIATE ACTION REQUIRED

Distribute Policy for Harassment Prevention Training

Of most immediate concern, employers who are racing to comply with the October 9 deadline for year one of harassment prevention training should note that, effective immediately, employers are mandated to distribute a copy of their sexual harassment prevention policy at every training session, as well as at hire, both in English and in the employee’s primary language.

Other Significant Changes

In addition to the policy distribution requirement, New York State’s new law extends the Human Rights Law’s requirements to employers of any size, as well as domestic workers, and expands the law’s protections to contractors, consultants and vendors who can show the employer knew or should have known of discrimination directed at them and failed to take immediate and appropriate corrective action that was within its ability.

In addition, the new law:

  • Broadly defines unlawful harassment as subjecting an individual to inferior terms, conditions, or privileges of employment because of an individual’s protected characteristic(s);
  • Eliminates the employee’s obligation to prove that harassing conduct is severe and/or pervasive;
  • Declares that an employee need not show that a comparative individual was treated more favorably;
  • Mandates that the state’s Human Rights Law be construed liberally, regardless of how comparable federal or other states’ laws may be interpreted; and
  • Eliminates the employer’s ability to defend the complaint on the grounds that the employee failed to raise an internal complaint;
  • But it permits employers to defend a claim by proving that the harassing conduct does not rise above the level of what a reasonable person in the shoes of the plaintiff would consider petty slights or trivial inconveniences.

For most employers, these changes will not require any revisions to their existing harassment prevention policy.  However, the “sidewalks” that most policies build around the legal standards have now gotten much narrower, and the amendments collectively make it significantly easier for an employee to support a legal claim of unlawful harassment.  Procedurally, the law increases the remedies available in litigation to include punitive damages and attorneys’ fees for a prevailing plaintiff (while an employer can seek recovery of its attorneys’ fees only if it shows the case was frivolous); and extends the statute of limitations for sexual harassment claims from one to three years.  With the exception of the change in the statute of limitations (which takes effect one year after enactment of the new law), all these changes take effect within the next 60 to 180 days.

Moving beyond litigation, the new law expands the confidentiality and mandatory arbitration clause restrictions adopted last year for sexual harassment claims to now apply to any claim of harassment or discrimination under the Human Rights Law, and it voids out any confidentiality clause to the extent it precludes participation in a government agency investigation or impedes a complainant’s filing for unemployment insurance, Medicaid or other public benefits.  As of January 1, 2020, any non-disclosure provision to which a complainant affirmatively consents must include language confirming that it does not prevent the employee from speaking with law enforcement, a human rights enforcement agency, or an attorney.

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9

July, 2018

Moving Forward After #MeToo – Consider Your Policies

Recent changes to New York State law regarding prevention of sexual harassment will require employers to revisit existing policies to comply with newly-mandated provisions, as summarized in our lead story from Takeaways, Spring 2018.  But looking beyond the state law, one key lesson to be derived from the #MeToo movement is that workplace policies prohibiting harassment must also emphasize power disparities.  The common thread in so many of the #MeToo-type incidents reported in the media is the use of, or perceived threat to use, power to objectify or demean someone.   This power-based focus is not just limited to gender; it plays out in interactions between individuals of different races, national origin, religions, sexual orientation and other protected classes, and thus it should be emphasized in any policy prohibiting harassment, not just those pertaining to sexual harassment.

Power disparities also are not limited to supervisor-subordinate relationships.  Consider a new hire being shown the ropes by an employee with five or ten years of experience.  Those individuals may be peers on an organization chart, but there still is a power disparity that can cause the new hire to feel uncomfortable objecting to offensive behavior.

Other times, the behavior at issue may not fall into the category of actionable harassment based on a protected characteristic.  Sometimes the behavior is just demeaning and abusive on an individual or group level.

Regardless of whether the behavior would give rise to a legal claim, the nature of such conduct can be corrosive in the work environment.  It can undermine morale, loyalty and productivity.  One step in addressing that is to add a clear, express statement in your anti-harassment policy that you will not tolerate the use of, or perceived threat to use, power to objectify or demean someone based on a protected class.  Employers that want to go further than the law can build on that with an anti-bullying or workplace conduct policy emphasizing that actual or perceived misuse of power, including abusive behavior, is not acceptable and grounds for disciplinary action.

Employment policies need to comply with legal requirements, but employers have the option of holding employees to a higher standard of behavior.  Updating policies to incorporate lessons learned from #MeToo is an important step in that process.

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28

January, 2015

When Power Should Go to a Manager’s Head (or at least stay top of mind)

It may seem obvious, but all too often managers seem to forget that power disparities in the workplace can turn otherwise innocuous encounters into fodder for a sexual harassment claim.  That is how Steelcase, a Michigan-based workplace furnishings manufacturer, incurred years of legal expenses defending a claim of sexual harassment by a former sales manager.  She claimed that a regional manager twice held his hand on her shoulder for an extended duration and commented on how she owed him because he had done a lot to get her hired.  These events occurred ten months prior to her termination for poor performance, and based on the absence of any allegedly inappropriate conduct in the intervening months, the federal appellate court ultimately upheld the dismissal of her legal claim.  But the claim might never have been made were it not for the regional manager’s indiscretion in maintaining an extended hold of her shoulder, a touch that might have been received differently had it been among peers.

It’s not just physical touching that can be problematic.  Fry’s Electronics reportedly paid $3.2 million to settle a sexual harassment and retaliation claim a few years ago.  According to the EEOC’s press release (and the EEOC regularly issues a press release when it negotiates a settlement), the case revolved around encounters between an assistant store manager, a female sales associate, and the sales associate’s direct manager.  The sales associate complained to her direct manager that the assistant store manager sent her frequent, sexually charged text messages and invited her to his house to drink.  The sales associate’s direct manager was fired after he reported the complaint.
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