Is There Liability You Could Face that You Did Not Face in the Past?
The NYS new anti-harassment law has a number of sweeping changes. For one, it applies to all protected classes under New York Human Rights Law, not only to sexual harassment cases. Protected classes include discrimination based on:
- Sexual orientation
- National origin
- Marital status
- Domestic violence victim status
- Criminal or arrest record
- Predisposing genetic characteristics
New Anti-Sexual Harassment Law Burden of Proof for a Hostile Work Environment
The “Severe or Pervasive” Standard
Under the previous law, to succeed in a claim, an employee suing an employer for discrimination had to prove that harassment was “severe and pervasive.” Rape or beating up an employee based on their protected class would be obvious examples of a severe act.
More often though, the courts looked for pervasive harassment, such as continually making racial slurs or frequently touching the employee in a sexual way over a period of time. Workplace comments had to rise to the level of vulgar and humiliating verbal assaults rather than occasional teasing or jokes.
In some instances, a combination of unwelcome physical acts, such as forcible touching and verbal abuse would meet the burden of proof. Unless employees could provide evidence that rose to that level of proof, they would not have an actionable claim.
The New Burden of Proof: Rising Above “Petty Slights and Trivial Inconveniences”
With the new law, the burden of proof has changed from “severe and pervasive” to “rising above petty slights and trivial inconveniences.” An affirmative defense for an employer is to prove that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”
Also, under the previous legislation, your attorney could argue that the claim was not actionable because the employee failed to file a complaint and take advantage of the employer’s correction process. However, under the new law, this failure does not result in rendering a decision that the employer is not liable.
(References: The National Law Review)
Stephen Hans & Associates assists employers in complying with employment laws and represents them in employment litigation.