This is the fourth in a series of articles on the employment protections that are now law as part of the Women’s Equality Agenda, a series of eight bills signed by Governor Cuomo on October 21, 2015. Part I may be found here. Part II may be found here. Part III may be found here. Part V may be found here.
Expanding Protection From Sexual Harassment
The employment discrimination provisions of New York State’s Human Rights Law exclude employers with fewer than four employees. A victim of discrimination by a small employer therefore could not take any action in response to discriminatory treatment. That has now changed for victims of sexual harassment. S2/A5360 amends the Human Rights Law to cover all “employers within the state” “in the case of an action for discrimination based on sex…with respect to sexual harassment only.” Now, even an employer with a single employee can be liable for sexual harassment.
What is interesting about the new law is that it, for the first time, gives statutory recognition to sexual harassment as a distinct form of employment discrimination. Both federal and New York State law do not actually contain explicit prohibitions of sexual harassment. Rather sexual harassment was first recognized by the Supreme Court in a 198 decision Meritor Savings Bank v. Vinson, as a form of employment discrimination. The Court held that sex discrimination was not limited simply to tangible economic harms such as firing, failure to hire, or failure to promote. Rather, when Congress passed Title VII it intended ”to strike at the entire spectrum of disparate treatment of men and women in employment.” Courts have recognized that the New York State Human Rights law also prohibits sexual harassment. This can include an employer requiring sexual favors as a quid pro quo for favorable treatment in the workplace. It can also include subjecting an employee to a workplace permeated with intimidation, ridicule, and insult based on sex.
Even after this amendment to the New York State Human Rights Law, the statute does not explicitly define what sex discrimination cases constitute “sexual harassment.” The term has been around long enough to be developed in court decisions, but it will be interesting to see if lawyers try to shoehorn cases into “sexual harassment” claims that may have been litigated as more typical disparate treatment claims.
It also should be noted that the law protects men as well as women who are victims of sexual harassment.