New York lawmakers are considering a stricter standard for workplace-harassment claims that they say would better protect employees from inappropriate behavior.
A bill pending in the state legislature would eliminate the requirement that offensive conduct be “severe or pervasive” to qualify as sexual harassment. Its sponsors, Assemblywoman Aravella Simotas and state Sen. Alessandra Biaggi, both Democrats, said the current standard has led judges to determine that pulling a bra strap or suggesting that a woman get breast implants didn’t qualify as harassment.
“Our society has evolved, and conduct that may have been appropriate or acceptable in 1986 is not appropriate in 2019,” Ms. Simotas said at a news conference last week. She was joined by members of the Sexual Harassment Working Group, an ad hoc group of former legislative aides who filed harassment complaints against state lawmakers.
The lawmakers are instead proposing a standard adopted a decade ago in New York City. Under their bill, discriminatory conduct would qualify as harassment if it is more than a petty slight or trivial inconvenience.
The proposed bill would also eliminate the Faragher-Ellerth defense, a common tactic used by employers against sexual-harassment claims — named after two court decisions. That defense lets employers escape liability if a complaining employee doesn’t follow established sexual-harassment policies and procedures.
Gary Friedman, a partner who handles employment litigation at Weil, Gotshal & Manges LLP, said the proposed changes may result in more claims going to trial. The new standard would be less precise and more context specific, he said, resulting in fewer pretrial dismissals.
“This is going to force employers to raise the level of consciousness within the workplace, and it’s going to also force them to police their culture and work environment more carefully and diligently,” Mr. Friedman said in an interview.
The Business Council of New York State opposes the bill, according to Frank Kerbein, director of its Center for Human Resources. He said employers have been working to stamp out sexual harassment.
“‘Severe or pervasive’ is the standard that’s served us well for all these years, and it’s one we want to keep,” Mr. Kerbein said in an interview.
Mr. Friedman testified in February at the first of two hearings held by the legislature to examine updates to the state’s sexual-harassment laws. At a second hearing on Friday, a representative of the New York City Commission on Human Rights endorsed the changes. Two representatives from the New York State Division of Human Rights declined to do so, prompting frustrated reactions from Ms. Biaggi and other lawmakers.
Gov. Andrew Cuomo has touted a law adopted last year as the strongest protections for workers against sexual harassment in the nation. The law banned mandatory arbitration in employment contracts and prohibited the use of nondisclosure agreements, unless preferred by the victim. The law also directed the state’s Division of Human Rights to develop minimum standards for sexual-harassment policies that employers must adopt or exceed.
A spokesman for Mr. Cuomo said he was willing to work with legislators to build on the existing law. A spokesman for Senate Majority Leader Andrea Stewart-Cousins, a Democrat from Yonkers, said she was very interested in the issue and hopes to take action shortly. A spokesman for Assembly Speaker Carl Heastie, a Democrat from the Bronx, said he would discuss the legislation with his members.