Lawyer Monthly Magazine - November 2019 Edition

DANIELLE M. PATTERSON Ms. Patterson graduated Cum Laude from New York University with a BSW in Social Work, and from Columbia University with an MSW, with a concentration in Advanced Clinical Social Work and Contemporary Social Issues. In maintaining her commitment to and passion for social justice, she then received her JD from St. John’s University School of Law in Queens, New York. While in law school, Ms. Patterson served as a Secretary of the Labor and Employment Relations Society, and as a Member of OutLaws and Allies. Ms. Patterson also published the paper Title VII Bars Discrimination in Employment Based on Race, Color, National Origin, Religion, Sex and...Sexual Orientation?, which discussed the vital impact of the recent Supreme Court case Altitude Express, Inc. v. Zarda in the fight against workplace discrimination on the basis of sexual orientation. CONTACT Attorneys at Law, PLLC 45 Broadway, Suite 620, New York, NY 10006 Tel: 212-248-7431 Fax: 212-901-2107 newyorkcitydiscriminationlawyer.com Professional Excellence By Parisis G. Filippatos & Danielle M. Patterson, Phillips & Associates 73 NOV 2019 | WWW.LAWYER-MONTHLY.COM CHANGES UNDER NEW YORK STATE LAW The #MeToo movement has been a catalyst for promoting a new cultural standard that sexual harassment in any form is intolerable. This new standard called for swift legislative action, and New York State delivered in 2019. Claims of sexual harassment are no longer governed by the same federal standard in New York State. In August of this year, Governor Andrew Cuomo signed into law a bill that applied broad changes to the New York State Human Rights Law (“NYSHRL”) in order to amplify protections for victims of sexual harassment. While a sexual harassment claim brought under federal law is subject to the “severe or pervasive” standard, under the NYSHRL, the meaning of harassment is to be construed more liberally, as an employer is deemed to have engaged in “an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment” because of his or her protected characteristics. Furthermore, employers will now have a seemingly narrower affirmative defense to liability under New York state law if “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.” “The fact that such individual did not make a complaint about the harassment to [his or her] employer . . . shall not be determinative of whether” such employer is liable. Thus, under New York State law, it is no longer required to place your employer on notice of the sexual harassment in order to have a viable claim of sexual harassment. CHANGES UNDER NEW YORK STATE LAW Although in New York state providing notice of the sexual harassment to your employer is not necessary in order to demonstrate liability, it is still nevertheless strongly recommended so that your employer may take appropriate remedial action. Formal complaints should be in writing, and may be written by an attorney on your behalf, or you may decide to complain to your employer without having the appearance of legal representation, after consulting with a highly- skilled employment attorney. After your employer has been placed on notice of the sexual harassment, it triggers a legal obligation for your employer to act immediately. Most often, employers will initiate an investigative procedure into your complaint, and the procedure itself is specific to the employer. Cooperate with your employer: Continue to complete your duties and responsibilities in the most consistent and excellent manner possible. While participating in the investigative process can sometimes feel daunting and overwhelming, it is important to continue to performwith excellence and efficiency, so as not to give your employer any legitimate, non-discriminatory reason for an adverse action against you. Cooperate with your employer and the human resources department during the investigative process to ensure that you are willing and receptive to engaging in an interactive process that achieves a resolution to your complaint. Pursuant to the Faragher-Ellerth affirmative defense, the employer must show “(a) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41, 50 (2d Cir. 2012) (citing Faragher, 524 U.S. at 807 and Ellerth, 524 U.S. at 765). If your employer takes no remedial action through exercising reasonable care to prevent and correct promptly any sexually harassing behavior, your employer is indeed liable, and cannot assert this affirmative defense.