The #MeToo movement sparked by the Harvey Weinstein scandal has shown no sign of abating, despite the passage of several months. If anything, it has continued to gather steam, and we can expect to hear more sordid tales of Weinstein’s misconduct in the months to come. That is because, in mid-March, the Weinstein Company announced, in response to mounting pressure on the part of New York Attorney General Eric T. Schneiderman, that it was releasing all victims and witnesses who had previously signed nondisclosure agreements from their obligations pursuant to those agreements. The company simultaneously filed for bankruptcy. The voiding of the nondisclosure agreements (executed in connection with monetary settlements of claims against Weinstein) is part of a broader plan that, if and when consummated, will see the creation of a victim’s compensation fund, and the sale of the company’s assets subject to the approval of the Bankruptcy Court.
Numerous branches of government have made eradicating sexual harassment from the workplace a top priority in the wake of the Weinstein scandal. Not unexpectedly, the New York City Counsel, which has always been at the forefront of social welfare issues, has been busy drafting new proposed legislation on the subject. Its proposed “Stop Sexual Harassment in New York City Act” will, if passed in its entirety, mandate sexual harassment training, expand the coverage of the New York City Human Rights Law (NYCHRL) to smaller employers, extend the statute of limitations, and create new notice and posting requirements. Here is a rundown of some of the major components of this proposed law:
Mandatory Training. The law would require employers having 15 or more employees to conduct sexual harassment training on an annual basis starting in September 2018. The training would be interactive, and conducted either in person or through audiovisual materials. The training must include the following:
- An explanation that sexual harassment is unlawful under local, state and federal law;
- Practical examples of what sexual harassment constitutes;
- An overview of the employer’s complaint procedures for sexual harassment complaints;
- An overview of the complaint process available through the NYCHRL, NYSHRL and
federal Equal Employment Opportunity Commission, including contact information;
- An explanation that retaliation is unlawful, and a description of what retaliation is; and
- A discussion concerning the importance of bystander intervention.
Supervisory and managerial employees would be required to undergo additional annual training regarding their responsibilities to prevent sexual harassment and investigate complaints of misconduct. Employers would be required to keep records confirming their compliance, and non-compliance could result in penalties of up to $500 for a first violation, and up to $2,000 for each subsequent violation.
Notice and Posting Requirement. Employers would be required to display a poster, in English and Spanish, and in a form prepared by the NYC Commission on Human Rights, informing employees of their rights and responsibilities under the law. An information sheet summarizing those rights and responsibilities would also need to be provided to each employee at the time of hire. Penalties would apply for failing to comply with the posting and/or notice requirements.
Expansion of Coverage. Unlike the New York State Human Rights Law (NYSHRL), which applies to employers of any size, the NYCHRL does not apply to employers with fewer than four persons in his/her/its employ. If the new law is enacted, this limitation will no longer apply to sexual harassment claims brought under the NYCHRL. Note that while punitive damages and attorney’s fees or costs are not recoverable under the NYSHRL, they are recoverable under the NYCHRL. This new law would thus expose those smaller employers to potentially staggering costs if sexual harassment should occur in their workplace.
More time to Sue. The NYCHRL currently provides a one year statute of limitations within which employees who have experienced sexual harassment may file complaints. The new law proposes to extend this period to three years from the date of the alleged wrongful conduct.
The City Council has a strong track record of passing progressive legislation of the sort outlined above. Even if it this new law is not passed in its current proposed form, we can expect a similar law will ultimately be enacted.
In conclusion, employers who fail to take steps to address sexual harassment in the workplace are taking a real risk in today’s day and age of heightened awareness of the issue. Employers who wish to avoid lawsuits and the costs and disruption that go hand-in-hand with such lawsuits must make implementing and perfecting anti-harassment policies and procedures a top priority. From upper management, and all the way down the corporate food chain, personnel must be educated and trained as to what sexual harassment and retaliation are, how to avoid them and how to firmly and decisively address any incidents that should arise. The Weinstein Company’s management allowed a culture of outlandish harassment to flourish under their watch, and that company will soon be relegated to the pages of history. Countless other lesser-known entities that have ignored their obligations under the law to prevent and stop sexual harassment have likewise been put out of business by sexual harassment lawsuits. Simply put, avoiding sexual harassment and other forms of unlawful conduct in the workplace makes good business sense.