What happens when hundreds of people come together to talk about what’s next after #MeToo, in the country most committed to gender equality, and the conversation starts with Angela Davis? Here’s what happens.
August 30, 2019
On August 12, Governor Cuomo signed into law sweeping changes to New York’s laws on preventing harassment in the workplace. Here are eight important features of the new law (Assembly Bill 8421) that workers and employers in New York should be aware of:
Who’s an employer? All employers. No exception for size. Keep in mind that when talking about a private employer this includes any person, company, corporation, labor organization or association.
Does the new law make it easier or harder to prove harassment? Easier. Perhaps the most significant is the change to the legal standard for proving harassment in the workplace. Previously, a plaintiff would have to show that the harassment was severe or pervasive in order to be unlawful. The new standard is whether the actions subject someone to inferior terms, conditions or privileges of employment because of the individual's membership in one or more of these protected categories (age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, and for retaliation).
It’s also no longer determinative that an individual complain about the harassment to their employer, and the employee doesn’t have to demonstrate the existence of an individual to whom the employee's treatment must be compared. There is an affirmative defense to liability that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.
Who’s covered? Domestic workers, contractors, vendors, or consultants can bring an unlawful discrimination claim, not just W-2 employees.
How long is the statute of limitations? New York expanded the time to bring a claim of sexual harassment to three years. Bringing a claim of unlawful discrimination on the basis of other protected categories is still one year.
What about attorneys’ fees and damages? If a person brings a suit and “substantially prevails” they will be awarded reasonable attorneys’ fees and can seek punitive damages. The employer can recover attorneys’ fees only if they show that the claim was frivolous.
What’s happening with these non-disclosure agreements? Let’s take a step back. A “non-disclosure agreement” (NDA) is just what it sounds like. It’s an agreement that a person makes not to talk about something. What New York did was to say that NDAs aren’t allowed to keep someone from talking about the experience of workplace harassment, because we have a public policy interest in making sure this information gets out in the open.
The new law says that NDAs can’t be enforced unless they are the will of the complainant, with specific timing requirements to allow the complainant to consider whether they really want to agree to it. In addition, the law says that any NDA is void to the extent that it prevents the complainant from participating in an investigation by authorities, or initiating, testifying, assisting, or complying with a subpoena or filing. It also can’t prevent the person from disclosing any facts needed to receive unemployment insurance, Medicaid or other public benefits.
Beginning in January 2020, an NDA between an employer and an employee or potential employee related to future claims of discrimination is void unless it says that that it does not prohibit the individual from speaking with law enforcement, the Equal Employment Opportunity Commission, the State Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.
How about being required to arbitrate instead of going to court? Mandatory arbitration is a hot topic, and last year New York banned mandatory arbitration of sexual harassment claims. With this new legislation, New York also banned mandatory arbitration to resolve any allegation or claim of discrimination under New York’s Human Rights Law. While a recent decision in federal court said, as expected, that both the 2019 and 2018 prohibition on mandatory arbitration is preempted by the Federal Arbitration Act, and that New York’s ban on arbitration requirements is unenforceable, businesses should follow this developing story.
What information does an employer have to give its employees? Employers will have to give employees the business’s sexual harassment policies and sexual harassment training materials, in English and in each employee’s primary language, both at the time of hire and during each annual sexual harassment prevention training.
What does this all mean? Employers need to step up their game to prevent harassment in a serious way, and not just for sexual harassment. New York just made it easier for a worker (including consultants, contractors, vendors, and domestic workers) to win in court by lowering the standard of proof. New York also made it easier for these workers to get a lawyer (by awarding attorneys’ fees to successful plaintiffs) and took away employers’ bargaining chips of NDAs. And New York will presumably fight for an end to mandatory arbitration of discrimination cases. This all builds on last year’s legislation in New York that requires businesses to provide sexual harassment prevention training. (Reminder: you have to provide the training by October 9, 2019.) New York is clearly staking its claim as the state where your work will be unimpeded by workplace harassment.
At the EEOC Excel conference in Atlanta this week, I’m hearing a lot about what different practitioners are doing to build inclusive, equitable workplaces. Today I had two very different conversations with two people who are responsible for preventing workplace harassment in their (very large) organizations, one a public entity, one private, both in transportation. The person who worked for a private business told me that she can’t get people to care about preventing harassment because in her business, there’s a premium on not snitching, and reporting harassment is considered snitching. For her, the problem seemed too vast to tackle.
The second conversation was with Jonaura Wisdom, Chief Civil Rights Officer at Metro, Los Angeles’s public transportation system. Jonaura had a vastly different take on dealing with this issue, starting with the commitment she received from Metro’s chief that preventing harassment would be a priority under his tenure (pro tip 1: preventing harassment does not happen without a visible commitment from leadership). Next, she mentioned that when she does training on harassment prevention, she talks about how transit is tied to the history of civil rights in America, from Rosa Parks to transportation access as a right (pro tip 2: if you want behavior change, connecting that change to your values and your organizational mission is critical). Finally, she talked about the campaign that Metro launched this week to prevent harassment, the Level Up campaign (yes, that’s Ciara you hear in your head – and when you open the campaign poster), with the tagline “respect, respond, report.” The campaign encourages Metro employees to take responsibility for creating the workplace culture and climate that they want to experience. It’s a great example of creating a message that’s authentic and that resonates both with the existing and aspirational workplace culture. Check out Metro’s poster here (and turn the sound up!).
Kumail Nanjiani. Saoirse Ronan. Zach Galifianakis. You've already learned how to pronounce these names, right? In this piece by N'Jameh Camara in Teen Vogue, Camara talks about how her Gambian name isn't "hard to pronounce," it's unpracticed. One excellent, powerful way to demonstrate inclusion and show your respect is to learn how to pronounce your colleagues names, and say them. And it’s not just the person who’s name you correctly pronounce who notices- others around you will as well.
In April I gave a workshop on preventing harassment to a group of scientists working on policy issues in Washington, DC. During the middle of a discussion on workplace behaviors, a man raised his hand to ask, what of the structural reforms? How can we expect to see real change?
Are you a regular listener to Harvard Business Review’s Women at Work podcast? I can’t recommend it enough. In a recent episode, they host a discussion about whether women apologize more than men in the workplace, the minimizing language women use at the office and advice on how to break the habit. But - they don’t leave it there. They have a discussion guide and a link to the podcast, which you can find here. Grab your take out, find a conference room and debrief with your colleagues. It’ll be worth it.
Since January I’ve facilitated more than three dozen workshops on respectful workplaces — workshops aimed at changing behavior, resetting norms and recalibrating expectations in the workplace about all forms of harassment. One thing I’ve noticed is that participants want facts, and they want solutions. People want to understand why harassment happens and what they can do to make it stop. Read More.
On May 21, the Tory Burch Foundation announced the 50 early-stage women entrepreneurs selected for the fourth-annual Tory Burch Foundation Fellows Program.
The entrepreneurs participate in a year-long fellowship, receive access to the Foundation’s online peer-to-peer network, and a $5,000 grant for business education. In June, the Fellows will spend four days at the Tory Burch offices for workshops and mentoring with business leaders from Google, Spotify, Whole Foods and more.
You can read Audrey Roofeh’s fellowship profile here.
Who does the laundry? Who takes off work for kids’ sick days? You might ask why I'd post something so personal on a business website blog. The reason is this: work that happens in the home is still work. And we'd never leave a project to be managed without articulating roles and expectations, right?
I recently wrote about these questions, just in time for Mothers’s Day: What’s the Opposite of A Honey-Do List?