Clichés like “seismic shift” and “paradigm change” do not begin to describe just how profoundly the New York legislature changed the standards for harassment claims in a bill passed June 19. HR professionals and employers beware: the sexual harassment foundation you have known for 30 years—and upon which all your in-house training, HR policies, and legal and HR instincts are built—has just been neatly demolished. Here’s why:
A Critical Bit of History
Boring history lesson now ensues (but will make you sound smart when you tell your HR and management colleagues about it):
Everybody knows that Title VII of the Civil Rights Act of 1964—the basic model for all state employment discrimination statutes—makes it unlawful to discriminate against employees on the basis of a number of protected characteristics, including “sex.” In 1964, and for a couple of decades after that, “discrimination” meant the big employment decisions: you couldn’t refuse to hire, fail to promote, or fire somebody because she was, say, a woman, or black, or a Baptist. Under the original conception of Title VII, those were the tangible, serious “adverse employment actions” that violated the law—that is, anything that involved getting a job, losing a job, getting promoted or paid on that job, etc. The big stuff only.