On November 17, 2023, Governor Hochul signed Bill A00581, amending NYS' General Obligations Law to prohibit settlements, or other resolution, of sexual harassment claims or any other form of unlawful discrimination from including any term or condition that requires the survivor to pay the defendant liquidated damages if the complainant violates a non-disclosure agreement.

Survivors of sexual harassment and discrimination are often required to sign non-disclosure agreements (NDA) as a condition for receiving compensation for their horror. NDAs frequently include provisions requiring survivors to pay liquidated damages (predetermined damages) if they violate the agreement and these damages can be devastating. 

As a result, survivors, who later change their minds or those who were coerced into signing an NDA, face financial hardships for speaking out about their experience. This new law will protect survivors by no longer allowing financial penalties against them for sharing their stories about experiencing harassment and discrimination.

This Bill takes effect immediately and will apply to agreements entered on or after its effectiveness Agreements can no longer require the survivor to forfeit part or all of the consideration for violating an NDA. Additionally, defendants can no longer require survivors to sign an affirmative statement, assertion, or disclaimer stating that they were not subject to discrimination or retaliation.

On 3/13/2023, S3255 passed the NYS Senate and was delivered to the Assembly. 

This Anti-Discrimination Bill is so important to school-children and governmental employees facing discrimination in the State of New York.

Currently, when suing many governmental defendants for discrimination, such as school districts, victims only have one year to bring their claims (except for sexual harassment claims) before the New York State Division of Human Rights. This bill would make the limitations period three years. 

The bill is particularly important to bridge the gap between suing the government and non-governmental actors. When suing a non-government actor for discrimination, a victim can bring a court case, rather than a claim before the New York State Division of Human Rights, under the New York State Human Rights Law, within three years of the wrongful acts of discrimination. 

However, discrimination court cases against the government are often subject to a notice of claim statute where the statute of limitations is effectively limited to ninety days. 

As a result, many victims of governmental discrimination are out of luck when brining claims because they did not act quickly enough. 

Often times, a claim against a school district for permitting harassment in school is an ongoing case where acts over years demonstrate the discrimination, but recent events only tell an incomplete story. 

This law will bring fairness to the state and protect victims of discrimination.  

We strongly support the passage of this Bill and hope that the Assembly passes it swiftly.

Washington DC now has mandatory sexual harassment trainings from a 2018 law, the Tipped Wage Workers Fairness Amendment Act.

Under the law, covered employers’ primary obligations include providing mandatory sexual harassment training to both business operators & tipped employees.

Other obligations require covered employers to report to the DC Office of Human Rights (OHR) both their sexual harassment policy & all harassment complaints made to management from 2020 on. All requirements are set forth in OHR’s fact sheet on employee rights, which must be posted at places of employment. 

OHR has created a portal for employers to report their compliance with the mandates of the Act & employers will be watched - so tread carefully. 

If you were harassed or discriminated against, this law & its trainings are not the end of the story. You have a claim under Title VII & other federal & state laws. Know your rights & act because statutes of limitations, including a filing requirement with EEOC might otherwise curtail your rights. This is serious & damages can be outrageous.  

 

The Stop Sexual Assault and Harassment in Transportation Act passed the House on March 30, 2022 and now makes its way to the senate. 

If passed, the Act will require airlines, railroads, vessels, buses, and transit entities (e.g., Uber / Lyft) to establish "a formal policy with respect to transportation sexual assault or harassment incidents" together with appropriate trainings. 

It is specifically designed to notice, warn, prevent, and combat sexual assault and harassment by the public and staff making transportation safe for all involved. 

The Act establishes civil penalties against harassers starting at $35,000. 

Shouldn't it be safe to travel and shouldn't it be safe to work in transit?

On March 7, 2022, the NYS Senate joined the Assembly to pass a bill (now going to the Governor to be enacted), which establishes a hotline for complainants of workplace sexual harassment. 

The Bill's Justification explains that "[n]early 75% of all sexual harassment goes unreported," and it envisions that this toll-free hotline, available, "at minimum, Monday to Friday from 9 a.m. to 5 p.m.," which will "connect complainants with experienced pro-bono attorneys who will help make them aware of their legal rights and advise them on the specifics of their individualized cases," will result in more reported claims. 

The issue with this STUPID Bill is two-fold:

1. Who needs a toll-free line in 2022? Aren't we past the time when telephone companies charge per second of use? Don't most people utilize VoIP or cell phones? What decade is the NYS Government operating in? Have they heard of the world wide web? 
2. Why are they referring to pro-bono (free) attorneys on a type of case where the plaintiff can recover their attorneys' fees from the plaintiff, by statute, and almost no plaintiffs pay their attorneys hourly fees? Sounds like a lipservice law to us, no?

 

Victims of sexual harassment and sexual assault can now proceed in a class action, with other victims, and can also litigate their case in court, individually or collectively, regardless of having previously executed an arbitration agreement. 

This is really important because powerful companies have traditionally forced their employees and independent contractors to sign predispute joint-action waivers, which prevent victims from bringing joint, class, or collective actions against those companies for sexual harassment and sexual assault. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 invalidated such waivers. Now, victims can work collectively and take on powerful companies in court in the same way that a union equalizes employee bargaining power at the proverbial negotiating table.

The Act also invalidates mandatory arbitration agreements, which heavily favor companies who regularly pay the same arbitrators, know their rules, have relationships, and win a vast majority of the time.

To learn more about this new law, here is an audio recording of my appearance on The Jay Oliver Show explaining the importance of the law right after it was passed by the Senate. To be clear, the recording misstates the law's effectiveness to past claims. The law only applies to claims that "arise[] or accrue[] on or after the date of enactment," which was March 2, 2022. 

President Biden just established a Council to coordinate the Federal Government's efforts to advance gender equity and equality. 

In plain English, this counsel's mission is to combat sex discrimination by providing legislative and policy recommendations by September 24, 2021.

Stay tuned. Equality is happening now. 

Are you ready?

Back on October 11, 2019, the NYS Human Rights Law was modified with a new standard for actionable employment sex discrimination. The new standard was intended to align NYS more closely with the NYC Human Rights Law. 

The new standard is that conduct that exceeds "petty slights or trivial inconveniences" is actionable. 

As to what that means, the NYC law was interpreted by the Second Circuit Court of Appeals (Federal Court) in Mihalik v. Credit Agricole Cheuvreux North America, Inc., which is the leading case. 

Now, we have a leading case interpreting the NYS law as well by a State Court. 

On December 15, 2020, the NYS Appellate Division decided Franco v Hyatt Corp. and found the following allegations to constitute conduct that exceeds petty slights or trivial inconveniences:

1. Supervisor made repeated sexual advances towards him, including reaching out to touch his face and holding his hand in an elevator while they were alone.
2. Supervisor also initiated conversations that made him uncomfortable, telling him she had a "crush" on him, telling him she was single and twice inviting him to her home to repair "a hole" in her apartment. 
3. Supervisor said she had a tattoo, adding that "You have to undress me to see it." 
4. After victim rebuffed advances, supervisor brought him to the Human Resources manager's office to complain about his work product and that she solicited complaints about him from other coworkers.

• Within three months of start date, provide information concerning illegality of sexual harassment and remedies available by email or posting;
• Provide two hours of training and education between October 1, 2019 and 2020; and
• Provide such training to new hires within six months of start date.

 

• Changes the severe or pervasive standard of harassment to a very low standard of more than petty slights or trivial inconveniences;
• Eliminates part of the Faragher/Ellerth affirmative defense to a lawsuit by making the fact that the employee did not make a complaint about the harassment to the employer not determinative as to liability;
• Extends protection for non-employees in the workplace to all protected classes;
• Allows courts to award attorney's fees on all claims of employment discrimination, and allow for punitive damages in employment discrimination cases against private employers;
• Provide that the Human Rights Law is to be construed liberally for remedial purposes, regardless of how federal laws have been construed;
• Prohibit mandatory arbitration clauses for discrimination claims;
• Prohibit non-disclosure agreements in any settlement for a claim of discrimination, unless it's the complainant's preference;
• Provide that any term or condition in a non-disclosure agreement is void if it prohibits the complainant from initiating or participating in an agency investigation or disclosing facts necessary to receive public benefits;
• Require that employees be notified that non-disclosure agreements in employment contracts cannot prevent them from talking to the police, the Equal Employment Opportunity Commission (EEOC), the State Division of Human Rights or a similar local entity, or a lawyer;
• Extend the authority of the Attorney General to prosecute certain civil and criminal cases of discrimination against all protected classes;
• Require the Department of Labor and the Division of Human Rights to evaluate the impact of the model sexual harassment prevention policy every four years and update the policy as needed;
• Require any term or condition in a non-disclosure agreement be provided in writing to all parties, in plain English and the primary language of the complainant;
• Require the commissioner of the Labor Department to prepare templates of the model policy in languages other than English;
• Require every employer to provide employees with their sexual harassment policy in English or their primary language when they are hired and during training; and
• Extend the statute of limitations to file a sexual harassment complaint with the Division of Human Rights from one year to three years.