Eliminating workplace harassment in any form – not just sexual harassment – is the goal of the law that Gov. Andrew M. Cuomo signed this week.
Someday, New York residents will look back at 2019 and ask: How did it take so long for this type of basic protection to be codified by the state?
Under the law that will be phased in this year, harassment will be defined as treating someone as inferior beyond “petty slights and trivial inconveniences,” based on age, race, sex, religion and other categories.
Previously a successful harassment claim had to show the behavior was “severe or pervasive,” a harder standard to reach.
The new threshold matches the law that New York City put in place a decade ago.
Protection from harassment is extended to employees in companies of all sizes, as well as domestic workers and independent contractors.
Among other changes, the law bans the use of mandatory arbitration to settle disputes with employers. Mandatory arbitration often protects the harassers by keeping complaints from going to trial and forcing victims to keep silent about their cases. Sens. Kirsten Gillibrand, D-N.Y., and Lindsey Graham, R-S.C., in 2017 co-sponsored federal legislation to end forced arbitration of sexual harassment cases, but the bill did not advance out of committee.
The Business Council of New York State has raised legitimate concerns about some aspects of the law. Frank Kerbein, an executive with the council, worries about the bill’s elimination of the Faragher-Ellerth defense, which lets employers escape liability if a complaining employee does not follow established sexual harassment policies. The defense is named after two 1998 U.S. Supreme Court decisions.
“If something happens during off hours, or over text and we have no way of knowing, we now have significant liability,” Kerbein told the New York Post. “This will result in more claims and litigation … the harassers need to be held accountable, but this makes it hard even when employers are doing everything right.”
Conscientious employers who actively promote a safe working environment should not be held liable for things over which they have no control. Lawmakers will need to monitor that a law made to punish the guilty does not also ensnare the innocent.
On balance, the legislation will give needed leverage to those who have been powerless in the past. Women or men who have been sexually preyed upon, or harassed for other reasons, will no longer be brushed aside.
The law gained momentum after joint legislative hearings held earlier this year that focused on harassment experienced by former legislative staffers in Albany. The state’s recent cash settlement of a harassment lawsuit by a female aide to former Assemblyman Dennis H. Gabryszak was another reminder of the boy’s club atmosphere that has made tales of misogynistic misdeeds in the State Capitol all too frequent.
Keeping people safe is one of the things we count on government to do. When threats to our dignity and well-being are made, particularly from people we work with, a law like this helps protect the freedom to be ourselves.