On August 12, 2019, Governor Cuomo signed the legislation that was passed by the New York State Assembly and Senate on June 19, 2019, making sweeping changes to the New York Human Rights Law. We previously posted a summary of the significant amendments to the Human Rights Law and the potential impact that these amendments could have on the litigation of discrimination and harassment claims filed with the Division of Human Rights and in court. The legislation does not apply retroactively, so only future claims under the Human Rights Law will be affected.
In 2018, Governor Cuomo signed a State Budget bill that included various provisions addressing sexual harassment in the workplace. Among those provisions was a prohibition on including in any written contract a clause requiring the submission of sexual harassment claims to arbitration, except where inconsistent with federal law. On June 26, 2019, the U.S. District Court for the Southern District of New York held, in Latif v. Morgan Stanley & Co. LLC, that this New York law prohibiting mandatory arbitration of sexual harassment claims is inconsistent with the Federal Arbitration Act and is therefore invalid.
On June 19, 2019, the New York State Assembly and Senate passed legislation that makes sweeping changes to the New York Human Rights Law. This legislation will have a significant impact on the litigation of discrimination and harassment claims filed with the Division of Human Rights and in court. It is expected that Governor Cuomo will sign the legislation soon. The legislation does not apply retroactively, so only future claims under the Human Rights Law will be affected.
For those of you old enough to remember (and young enough to search YouTube), when Saturday Night Live was in its early heyday, one of its most popular skits was “Point/Counterpoint” starring Dan Aykroyd and Jane Curtin. During this satire on news commentary, Mr. Aykroyd would start his “counterpoint” with “Jane, you ignorant slut,” a phrase that drew laughs in the 70s, but may not be so well received -- even in jest -- today. And, as we will see from a recent court decision discussed below, when sophomoric name-calling leads to the actual spread of rumors in the workplace, liability for sexual harassment can attach.
On January 15, 2019, the New York legislature passed the Gender Expression Non-Discrimination Act (“GENDA”). GENDA, which faced more than a decade of impasse in the State Senate, was signed by Governor Cuomo on January 25, 2019.
On October 1, the New York State Division of Human Rights issued its final model sexual harassment policy and training guidelines to assist employers in complying with the new sexual harassment legislation that will become effective October 9, 2018. One piece of good news for employers is that the Division's final training guidelines no longer require that employers train all employees by January 1, 2019, as the Division initially proposed. Instead, according to the FAQs, employers will have until October 9, 2019 -- a full 12 months from the effective date of the legislation -- to complete the training for all employees. In addition, the Division's final training guidelines no longer require that new employees complete the sexual harassment training within 30 calendar days of starting their job. Instead, the Division's guidelines simply encourage employers to train their new employees "as soon as possible" after beginning employment.
The Equal Employment Opportunity Commission is seeking public comment on its newly proposed enforcement guidance addressing unlawful workplace harassment under the federal anti-discrimination laws. The initial deadline for employers and other members of the public to submit input regarding the proposed guidance was February 9, but the EEOC just announced today that it was extending the deadline to March 21.
The publishing of the new proposed guidance stems from the recommendations made last June by the EEOC’s Select Task Force on the study of harassment in the workplace. If put into effect, the new guidelines would supersede pre-existing agency guidelines created during the 1990s. The EEOC issued a press release, in which EEOC Commissioner Chai Feldblum was quoted as saying: “This guidance clearly sets forth the Commission's positions on harassment law, provides helpful explanatory examples, and provides promising practices based on the recommendations in the report.”
The majority of the 75-page guidance offers an overview of the EEOC’s positions on the following topics:
harassment based on protected characteristics (race, color, national origin, religion, sex, age, disability, and genetic information);
harassment resulting in discrimination based on a term, condition, or privilege of employment;
defining hostile work environment claims;
employer liability standards; and
In its guidance, the EEOC also suggests a number of “promising practices” to help employers eliminate workplace harassment including:
committed and engaged leadership;
strong and comprehensive harassment policies;
trusted and accessible complaint procedures; and
regular and interactive anti-harassment trainings.
In its press release accompanying the issuance of the proposed guidance, the EEOC stated that the new guidance is necessary because the number of harassment claims filed over the past several years is on the rise. According to the EEOC, between 2012 and 2015, the percentage of private sector charges that included an allegation of harassment increased from slightly more than one-quarter of all charges annually to over 30% of all charges. In 2015, the EEOC received 27,893 private sector charges that included an allegation of harassment, accounting for more than 31% of the charges filed that year.
Employers who are interested in providing input on the proposed guidance may do so by submitting comments through www.regulations.gov, or by sending written feedback to: Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. The EEOC will consider input from the public before finalizing and issuing the guidance. In addition, this would be an opportune time for employers to review their anti-harassment policies and complaint procedures, to revise those policies and procedures if necessary, and to conduct some anti-harassment training for employees.
In 2015, the Equal Employment Opportunity Commission (EEOC) received almost 28,000 charges of discrimination alleging workplace harassment -- a number that has remained relatively constant over the last five years. In response, the EEOC formed a Select Task Force -- comprised of member representatives from multi-disciplinary backgrounds -- who spent the past year strategizing to find innovative solutions.
The culmination of that effort -- the "Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace" -- was recently released. The Report discusses how employers might reduce harassment concerns by proactively focusing on unwelcome conduct and targeting behavior that, if "left unchecked, may set the stage for unlawful harassment."
The Report provides comprehensive recommendations that target harassment from all angles. The findings demonstrate that while training sessions are essential, they should not be focused on merely avoiding legal liability. Instead, employers should tailor programs to meet the particular needs of the company, developing a "holistic culture of non-harassment that starts at the top" and holds all levels of employees accountable for their role in prevention. "One size does not fit all" and unique programs are needed to "ensure that those who engage in harassment are held responsible in a meaningful, appropriate, and proportional manner, and that those whose job it is to prevent or respond to harassment should be rewarded for doing that job well (or penalized for failing to do so)."
The Report provides practical resources, including checklists and a "risk factor" analysis, to help employers assess their organization and respond appropriately.
Finally, the Report proposes exploring new approaches to anti-harassment trainings, including "bystander intervention trainings" -- that give employees tools to intervene when they witness harassing behavior -- and "civility trainings" -- that foster a general culture of respect and workplace civility aimed at all employees, regardless of whether a person falls into a legally protected class.
Employers would be well-advised to review the Task Force’s Report and recommendations and determine if additional workplace training is warranted. If you determine that additional workplace training is necessary, please contact your labor and employment counsel at Bond to discuss our training capabilities.
Editor's Note: Mara Afzali, one of Bond's Summer Law Clerks, assisted in the preparation of this blog post.
As we reported in a blog post last month, although neither the federal nor state law expressly prohibits discrimination on the basis of gender identity or expression, Governor Cuomo bypassed the legislative process and urged the New York State Division of Human Rights to issue regulations that will interpret the state’s anti-discrimination prohibitions to cover transgender individuals. Just this week, the New York State Division of Human Rights adopted those regulations. The regulations, which became effective on Wednesday, make discrimination or harassment against transgender applicants and employees unlawful, and require employers to accommodate transgender individuals who have been diagnosed with a medical condition referred to as “gender dysphoria” – a medical condition related to an individual having a gender identity different from the sex assigned to him or her at birth.
In addition, the New York City Commission on Human Rights recently issued a guidance document on what constitutes discrimination against transgender people under the New York City Human Rights Law. The Commission’s guidance provides numerous examples of employer actions that violate the NYCHRL, including failure to use an individual’s preferred name, pronoun or title, denying transgender employees the use of restrooms consistent with their gender identity, and even enforcing dress codes that make differentiations based on sex or gender. The Commission’s recent guidance also announces much more strict penalties for transgender discrimination. Under the NYCHRL, civil penalties can range from $125,000 to $250,000 for violations that are deemed to be “willful, wanton or malicious.” The Commission announced that, among other factors, it will consider the lack of an adequate discrimination policy as a factor in assessing penalties.
Employers should review and revise their EEO and anti-harassment policies in light of these recent changes. Employers should also consider taking steps to educate and train their employees regarding these new requirements.
After several unsuccessful attempts to pass the Gender Expression Nondiscrimination Act, which would have extended the nondiscrimination protections in the New York Human Rights Law to transgender individuals, Governor Cuomo took the unprecedented step of directing the New York State Division of Human Rights to issue regulations that would protect transgender applicants and employees in New York.
The proposed regulations, which were published in the New York State Register on November 4, 2015, make discrimination and harassment on the basis of gender identity or the status of being transgender a form of sex discrimination prohibited under state law. The proposed regulations would also make “gender dysphoria” a protected disability under state law, prohibit harassment on the basis of one’s gender dysphoria, and obligate employers to provide accommodations to employees diagnosed with gender dysphoria. The regulations define “gender dysphoria” as a “recognized medical condition related to an individual having a gender identity different from the sex assigned to him or her at birth.”
The 45-day comment period recently ended, which clears the way for the Division of Human Rights to adopt the regulations. However, it is anticipated that the Division will wait until early 2016 to begin enforcing the Human Rights Law with respect to transgender applicants and employees. The anti-discrimination statute in New York City and several other city ordinances already extend protection to transgender individuals. In addition, earlier this year, the Department of Justice and the EEOC began interpreting the sex discrimination prohibition in Title VII of the Civil Rights Act to cover discrimination against transgender individuals. The Office of Federal Contract Compliance Programs also issued a final rule prohibiting federal contractors from discriminating against employees or applicants based on their sexual orientation or gender identity.
A great deal of litigation is likely to occur in this area in the upcoming year, not only to challenge the application of the various federal and state laws to transgender individuals, but also to address complex and sensitive issues including how employers will need to handle issues of confidentiality, employee benefits, accommodations for restroom access, and other issues that might arise for employees transitioning from one gender to another. Employers would be well-advised to begin to review their employee handbooks and other employment policies and practices to prepare for these expanded protections for transgender employees and applicants.
Conducting workplace investigations is one of the most challenging and most important duties that Human Resource professionals must take on. With the slew of existing laws, how Human Resource professionals respond to complaints about harassment or other misconduct can have huge legal and practical implications for the employer. Unfortunately, Einstein’s definition of insanity -- doing things the same way and expecting a different result -- all too often is at play when it comes to conducting effective investigations. Unfortunately, employers make the same mistakes time and again, exposing themselves to potential legal liability. These common mistakes often result in lawsuits being filed by the complaining employee or by the employee who is fired or disciplined. Here is a list of 10 common mistakes Human Resource professionals should avoid to minimize unnecessary legal exposure. 1. Failing to Investigate or Ignoring Complaints Failing to take action when a complaint is made is one of the biggest mistakes employers can make. Choosing not to conduct an investigation after acquiring knowledge of the alleged inappropriate conduct will result most likely in the company being legally responsible for harm caused to any employee, client, and others due to the inappropriate conduct. Regardless of how frivolous or unfounded the complaint appears, or who made the complaint, an investigation should be conducted. Even allegations made by employees who have a history of making complaints or are regarded as “troublemakers” at work should not be ignored. Equally important, the mere fact that the complaint may be anonymous does not excuse the failure to investigate. Obviously, the task is more difficult but the investigation nonetheless should be conducted. 2. Not Creating an Investigation Plan Failing to create a preliminary plan for the investigation creates serious issues because it often results in the purpose of the investigation being misunderstood or forgotten. Before diving into the investigation, make sure you’ve thought about the five W’s: (1) Why are you investigating?; (2) Who will conduct the investigation?; (3) Who are the witnesses that need to be interviewed?; (4) What evidence needs to be collected?; and (5) What is your investigation timeline?3. Taking Too Long to Investigate Delaying the initiation of the investigatory process after being notified of an issue may lead to employer liability. Particularly in harassment and discrimination cases, an employer’s decision to delay an investigation may be viewed as subjecting the employee to additional unlawful behavior. Nonetheless, making sure an investigative plan is properly prepared remains important. Therefore, Human Resource professionals must strike a balance between adequately preparing for the investigation and avoiding unreasonably long delays. 4. Not Having Trained and Ready Investigators or Selecting the Wrong Investigator A failure to have trained investigators prepared to promptly respond to complaints can result in an ineffective and drawn out investigation. Employers should have a few employees trained to conduct an impartial, professional, and credible investigation. Another option is to hire a trusted Human Resources colleague or use in-house or outside counsel to conduct the investigation. No matter who you choose as the investigator, making sure that the investigator is trained and able to begin the investigation promptly is key. Depending on the nature of the allegations, you also need to be sure you have selected the right person for the job. For example, having a former senior law enforcement official interview relatively young employees regarding highly sensitive allegations of a sexual nature may not be the most effective way to get the truth! 5. Not Doing a Thorough Investigation Conducting a sloppy investigation by failing to interview necessary witnesses, failing to review relevant documents, and ignoring potential issues that come up during the investigation can create just as much legal exposure as not doing an investigation at all. You should make sure that every investigation is thorough, not only to ensure that the alleged misconduct is properly dealt with, but also to counteract any accusations by an employee that the investigation was ineffective. 6. Conducting Unlawful Searches Searching an employee’s personal belongings or monitoring certain communications without consent can result in the employer breaking several federal and state laws. To avoid liability, it is good practice for employers to make employees aware of its surveillance policies and obtain consent from employees to monitor and access communications and information contained on any electronic devices employees are given access to at work. 7. Using Aggressive or Unwelcoming Interview Styles An employer may become the target of a lawsuit if its investigators are overly aggressive when interviewing employees about alleged misconduct. Aggressive tactics may result in legal claims such as false imprisonment and coerced confessions, just to name a few. More practically, the employer risks not getting the whole story, dissuading employees from cooperating in the investigation, and not reaching the correct conclusion in the matter. To avoid aggressive interviewing, you should consider appropriate locations to conduct the interviews, outline questions in advance, and use open-ended questions when able, to get the entire story. As noted above, the “right” investigator can and often does make a big difference in making witnesses feel comfortable so that they will be cooperative instead of obstructing the investigation. 8. Making Confidentiality Promises Although it is reasonable for an employer to encourage everyone involved in the investigation to keep the matter private, an employer should never promise an employee that his or her complaint will remain confidential. There will always be certain information that must be disclosed in order for a thorough investigation to be completed. Moreover, depending again on the nature of the allegations, employers run the risk of a possible violation of federal labor law (considering the NLRB's Banner Health decision) if they demand absolute confidentiality by the witnesses. 9. Failing to Create a Report Don’t underestimate the value of documenting investigations and credibility determinations to help support the company’s action or inaction regarding the allegations. Not appropriately documenting necessary evidence, information provided during interviews, and any other relevant findings is just as bad as failing to conduct an investigation. “The dog ate my homework” does not work very well in the legal arena. When there is no record of the information obtained to support your determination, there is no way to show that a proper investigation was done and that an appropriate determination was reached. An investigatory report should be prepared for every single investigation and should include a summary of the matter, the identity of the complainant, the accused, and all witnesses, a description of the relevant documents, findings, credibility determinations, and the recommended action. 10. Failing to Make a Determination Failing to reach a conclusion and take the necessary steps to stop misconduct and prevent it from occurring in the future will ultimately result in the employer once again exposing itself to legal liability. Once the report has been completed, a determination should be made regarding whether the misconduct occurred and what appropriate actions should be taken. Make sure, especially in cases of harassment, that the complainant does not suffer any adverse employment actions resulting from the determination unless you can prove that the allegations were made in bad faith. When a determination is made, you should consider not only if the chosen action appropriately corrects the problem, but whether it also sends a message to coworkers of what the consequences are for harassing behavior or misconduct. Following these basic common sense steps should go a long way in helping you ensure your employer avoids unnecessary liability.