Keep Up with Current Employment Law Issues

As discussed in a previous newsletter, the #MeToo movement has generated nationwide discussion about sexual harassment and resulted in increased workplace sexual harassment complaints throughout the country. In response to the perceived growing crisis, New York State made extensive changes to the state’s human rights laws as part of the 2019 New York State Budget. In addition, the New York City Council passed the Stop Sexual Harassment in NYC Act. These changes increase employer liability for—and enhance employee protections against—workplace sexual harassment and gender discrimination, requiring the immediate attention of employers of all sizes. This article will discuss what I consider to be the most salient changes in the law.    

Since the advent of the #MeToo Movement Era, anecdotal evidence suggests that there has been a spike in complaints of alleged sexual harassment in for profit and non-profit companies throughout the country. It is now more important than ever that companies and other organizations deal with sexual harassment allegations head-on. This means investigating allegations promptly and thoroughly, protecting victims against retaliation, taking proper action when wrongful conduct is found to have occurred, and taking steps to try to prevent future harassment. This article will identify some best practices in this regard.

At the risk of stating the obvious, the #MeToo movement, in raising awareness about the traumatic experiences of sexual assault and harassment victims, has already begun to spur changes to our laws. This is readily apparent in Section 162(q) of the Tax Cuts and Jobs Act which disallows employers from deducting settlement payments and legal costs related to sexual harassment or abuse matters if the parties signed a settlement agreement with a confidentiality provision. It would appear that ensuring the confidentiality of a settlement now comes at a higher price to corporations which in the past would have deducted the settlement amount and the attorney’s fees related to that matter. However, as is often the case under the “law” of unintended consequences, this provision may prove detrimental to some plaintiffs by causing companies to (i) fight lawsuits alleging sexual harassment or sexual abuse rather than settle early if they don’t expect to be able to use the foregoing deductions because any settlement will be confidential; and/or (ii) insist on paying lower amounts to settle confidentially, including in instances where plaintiffs desire confidentiality, because of the unavailability of these deductions.