Gov. Andrew Cuomo. Photo: Mark Reinstein/Shutterstock.com

Legislation to bolster protections for victims of sexual harassment in the workplace in New York and lower hurdles for those individuals to seek judicial recourse was signed into law by Gov. Andrew Cuomo on Monday.

The new law will, among other things, change the standard at which victims can allege sexual harassment and remove a tactic commonly used by employers to rebuff those claims.

The measure was the subject of two public hearings held earlier this year by the Legislature, which was first inspired by a group of former legislative staffers who’ve said they were victims of sexual harassment while working in state government.

It was the first time the Legislature held joint public hearings regarding the state’s laws on sexual harassment in the workplace in more than two decades.

State Sen. Alessandra Biaggi, D-Westchester, was an organizer of those hearings and later sponsored the bill signed into law by Cuomo on Monday. She gave a nod to the former staffers, who’ve organized themselves in recent years as the Sexual Harassment Working Group.

“In 2018 a group of former legislative staffers came forward to demand justice for the years of sexual harassment they endured at the hands of powerful lawmakers and state agencies—today we are taking that power and putting it in the hands of survivors and working people of New York,” Biaggi said.

The legislation was a priority this year for Biaggi, a freshman senator who won a primary last year against former Sen. Jeff Klein, D-Bronx, who was accused of sexually harassing a former staffer. Klein has denied the allegations.

That staffer, Erica Vladimer, later helped form the Sexual Harassment Working Group, which saw many of its priorities included in the legislation signed Monday. The group said in a statement that it will continue its push next year.

“Today, these protections are now available for millions of New York workers. Today, we celebrate and thank the workers who spoke out, the workers who could not speak out, and all of the workers who deserved better,” the group said. “Tomorrow, we plan 2020.”

Assemblywoman Aravella Simotas, D-Queens, who also sponsored the bill, said the new protections were long overdue. She worked with Biaggi and other lawmakers to plan this year’s hearings and later craft the bill, and she’s said more changes could come during next year’s legislative session.

“Every single person has the right to a workplace free of sexual harassment and violence,” Simotas said. “It has been a long time coming, and I am proud that the foundation upon which sexual harassment has festered in our workplaces for generations has been demolished.”

The new law will change the standard at which victims of sexual harassment can bring claims either in court or through a complaint filed with the state Division of Human Rights. Victims were previously held to a “severe or pervasive” standard, meaning the alleged behavior had to be one of the two to meet the burden of sexual harassment in New York.

A harasser could have previously been let off the hook, for example, if their behavior wasn’t considered severe or pervasive enough by a judge or the state to constitute a valid claim, regardless of the victim’s experience.

The new law doesn’t replace that standard with a new one. Instead, the statute says clearly that the severity or pervasiveness of the harassment is not relevant to a victim’s claim. Victims also won’t have to compare their experience to that of another employee to justify their claims.

It will also chip away at what’s called the Faragher-Ellerth defense, a tactic commonly used by employers to dismiss claims of sexual harassment.

The defense was articulated in two decisions by the U.S. Supreme Court regarding workplace harassment. Those rulings, handed down more than two decades ago, found an employer is not liable for sexual harassment if it can show the employee didn’t follow the company’s policy for addressing those claims.

The new law will remove the Faragher-Ellerth defense as an affirmative defense for employers, meaning that it won’t be determinative for an employer’s liability if the worker doesn’t report a claim or follow the company’s policy. They’ll still be able to use the defense, but it will no longer be determinative.

Those two parts of the bill—removing the “severe or pervasive” standard and changing the Faragher-Ellerth defense—will take effect 60 days from Monday, according to the legislation.

“By ending the absurd legal standard that sexual harassment in the workplace needs to be ‘severe or pervasive’ and making it easier for workplace sexual harassment claims to be brought forward, we are sending a strong message that time is up on sexual harassment in the workplace and setting the standard of equality for women,” Cuomo said.

While the changes were spurred by reports of sexual harassment in the workplace and the #MeToo movement, the legislation will also expand the same protections for victims who are harassed because of any protected class in New York, like sexual orientation, race, disability and others.

It will also extend the amount of time victims have to pursue claims of sexual harassment through a complaint with the state Division of Human Rights. Victims previously only had a year to pursue those claims through the state agency. They’ll now have three years, which is the same amount of time victims have to pursue claims in court.

Nondisclosure agreements will be further weakened by the law. Those who enter into such an agreement will still be allowed to participate in an investigation into workplace harassment. Any nondisclosure clauses related to future claims of discrimination will also now be void unless a worker is notified that they can still talk to a reporting agency.

There are a slew of other provisions in the law as well, including a requirement for the state to study how further progress could be made to combat harassment in the workplace.

Miriam Clark, the president of the National Employment Lawyers Association/New York and an attorney with Ritz Clark & Ben-Asher LLP, cheered the measure in a statement Monday.

“The bill signed today represents a historic step forward for all workers in New York State, strengthening protections against all forms of illegal harassment and discrimination,” Clark said. “We are proud that with this legislation New York sets a national standard for the rights of workers to discrimination-free workplaces.”

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