In March, the New York State Senate passed a bill that, if passed by the Assembly and signed by Governor Cuomo, would bolster and reform state sexual harassment laws. The most significant changes that will affect New York employers are the proposed bans on confidential settlements and mandatory arbitration clauses.
If passed in its current form, the changes would prohibit any court from accepting any settlement or confidentiality agreement, or any provision that prevents the disclosure of any factual information related to the sexual harassment action, unless the condition of confidentiality is preferred by the plaintiff, and the court has considered the potential impact of confidentiality on the public. The court may accept the settlement with confidentiality provisions only if the plaintiff’s desire for confidentiality is not the result of intimidation, coercion, retaliation, or threats. Further, all contractual provisions that mandate arbitration for allegations or claims of sexual harassment would be banned by the changes to the law.
The bill defines “sexual harassment” as “unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature if such conduct is made either explicitly or implicitly a term or condition of employment, or submission to or rejection of such conduct is used as the basis for employment decisions affecting an individual’s employment, or such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment, even if the complaining individual is not the intended target of the sexual harassment.” The law also extends sexual harassment protections to non-employees, including contractors, vendors, and consultants, thereby potentially holding employers liable to non-employees for violations of sexual harassment protections.
Although these changes have not yet become law, now is as good a time as ever to review your company’s sexual harassment policies to ensure compliance with current sexual harassment laws. Our employment attorneys are well-equipped to assist you.