Legislative Memo: Regarding Ending Sexual Harassment on the Job for Every Employee

April 29, 2015

A.5360 (Galef) / S.002 (Valesky)

Position: SUPPORT

In New York and nationwide, sexual harassment in the workplace is a very real problem that causes very real harm. In some cases, an employee may be forced to choose between quitting and trying to endure relentless aggressive behavior, unwelcome sexual advances, or a supervisor’s attempts to withhold a pay increase or promotion in exchange for sexual performance.

While state law currently prohibits workplace sexual harassment as a form of unlawful discrimination, the law specifically exempts businesses with fewer than four employees – and in New York, most private employers fall into this category, leaving hundreds of thousands of workers potentially vulnerable and without recourse. A.5360/S.002 will close this troubling gap in the law and extend the existing legal protections against sexual harassment to all New York employees. The New York Civil Liberties Union strongly supports passage of this legislation.

The New York State Human Rights Law provides many important protections from various forms of discrimination, including sexual harassment.¹  However, the Human Rights Law’s definition of an employer provides a general exemption for “any employer with fewer than four persons in his or her employ.”²  As a result, employees who face unchecked sexual harassment in New York’s smallest workplaces are denied access to the recourse available to employees in larger workplaces, because these small business employees are not eligible under the law to file sexual harassment complaints with the state Division of Human Rights.

To rectify this, A.5360/S.002 would amend the Human Rights Law to define “employer” as including all New York employers for the specific purposes of sexual harassment cases. This would mean that employees of any business, however large or small, could file a complaint and have their claim reviewed by the state when they experience sexual harassment that goes unaddressed by management – expanding existing protections to hundreds of thousands of workers statewide.³

Importantly, passage of A.5360/S.002 would open this recourse to the very employees who are most likely to be vulnerable to the problem of sexual harassment at work. Occupational health and safety experts have found that employees of smaller businesses may be more susceptible to workplace sexual harassment due to many factors, such as lower likelihood of established policies or practices around sexual harassment, less formal workplace cultures, less awareness among superiors and colleagues of workers’ rights and of what sorts of actions constitute sexual harassment, and greater tendencies among those in charge to believe that workplace sexual harassment is not a serious problem.⁴

Regardless of business size, sexual harassment has very damaging effects on the psychological, physical, and occupational wellbeing of employees who experience it. Common psychological and physical health impacts have been found to include anxiety, depression, post-traumatic stress, sleep disorders, self-doubt and loss of self-esteem, hypertension, nausea and loss of appetite, headaches, and chronic pain.

Commonly-reported effects on work life include difficulty maintaining productivity, feeling ostracized or isolated, decreased job satisfaction and reduced organizational commitment, withdrawal from the workplace and absenteeism, avoidance of stressors and co-workers associated with stressors, and lost wages due to leave, transfer, or termination.⁵  In addition, women are disproportionately affected – only a quarter, or fewer, of those who file workplace sexual harassment complaints are men, and women are far more likely than men to quit, transfer, or even lose their jobs as a result of sexual harassment.⁶

Workplace sexual harassment is a serious issue that can give rise to extremely serious problems among the workers and workplaces it impacts. A.5360/S.002 will expand existing legal protections against sexual harassment to all of New York’s workers – so that nobody has to withstand sexual harassment at work simply because their workplace has three employees instead of four or five. The New York Civil Liberties Union urges passage of this bill.

1 New York Human Rights Law, codified at Article 15 of the N.Y. Exec. Law, §§ 290-301.

2 N.Y. Exec Law § 292(5); this section also contains a specific provision that employers of domestic workers are not exempted from the law for purposes of sexual harassment (enacted Ch. 481 N.Y Laws of 2010 at § 4).

3 U.S. Census Bureau, Statistics of U.S. Businesses 2008: New York – All industries – by Employment Size of Enterprise, available at https://www.census.gov/epcd/susb/latest/ny/NY–.HTM (number of employees working for over 288,000 businesses with 1 to 4 employees = 474,787); for 2012 data (n = 486,234), see U.S. Census Bureau, Statistics of U.S. Businesses, “U.S. & states, totals” (Excel file), available at http://www.census.gov/econ/susb/.

4 See, e.g., Angela M. Dionisi and Julian Barling, Sexual harassment: a big issue for small and medium sized enterprises? (2011), available at http://web.business.queensu.ca/faculty/jbarling/Chapters/Sexual%20Harass… (in E. Kevin Kelloway and Cary L. Cooper, eds., Occupational Health and Safety for Small and Medium Sized Enterprises (2011) at 129).

5 See, e.g., The Advocates for Human Rights, Effects of Sexual Harassment (last updated May 2007), available at http://www.stopvaw.org/effects_of_sexual_harassment.

6 Office of the N.Y.S. Governor, Governor Cuomo Introduces Womens Equality Act Legislation (June 4, 2013), available at https://www.governor.ny.gov/news/governor-cuomo-introduces-womens-equali… U.S. E.E.O.C., Charges Alleging Sexual Harassment FY 2010 – FY 2014 (2015), available at http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm; Effects of Sexual Harassment, note 5 supra.