New York legislators, spearheaded by Assemblywoman Aravella Simotas, amended the New York State Human Rights Law, broadening its scope to better protect employees. Most notably, it eliminates the requirement that workplace harassment be proven “severe or pervasive” enough to have a valid claim and eliminates the Farager/Ellerth Defense. If you have been subjected to sexual harassment or discrimination on the job, you should consult an experienced employment law attorney.
What is the Faragher/Ellerth Defense?
The legislation eliminates the so-called Faragher/Ellerth defense by removing the requirement that the harassment claim be proven severe or pervasive enough to be viable. The affirmative defense gets its name from two 1998 Supreme Court cases (Faragher v. City of Boca Raton/Burlington Industries, Inc. v. Ellerth). Employers may assert the defense when:
- An adverse employment action was not taken against the employee (e.g. discharge, demotion, or reassignment)
- The employer took reasonable measures to prevent and promptly correct the harassing behavior, such as by establishing and implementing a no harassment policy
- The employee failed to take advantage of any reporting procedures outlined in an anti-harassment policy
The amendement also includes protections for domestic service workers, holds employers liable for harassment and discrimination by independent contractors, and allows employees to recover punitive damages over workplace harassment. In short, the amendment levels the playing field for workers throughout the state of New York who are bringing claims of harassment and discrimination against their employers.
Now that the #MeToo movement has raised the level of awareness about sexual harassment in the workplace, lawmakers in New York are using that as an impetus to improve legal protections for workers in the state. Utlimately, the best way to enforce your rights is by working with the experienced sexual harassment attorneys at Lispky Lowe LLP.