By Victoria Merlino
State lawmakers conducted a joint hearing on workplace sexual harassment in Manhattan on Friday as New York continues to address the impact of the #MeToo movement. The forum was part of an effort to modernize state laws and potentially end the “severe and pervasive” standard in judging sexual harassment cases.
The vague “severe and pervasive” legal standard, which is followed by New York state, holds that in order for a work environment to be considered hostile, the harassment must be continuous or extreme. A single joke or comment may not be enough to file a claim of sexual harassment under the standard, for example, though a single incident can count under certain circumstances. The “severe and pervasive” standard can be difficult to prove, and make court cases difficult to win for some victims, legal experts say.
Lawmakers have been exploring changes to the laws around sexual harassment, including at a hearing on the issue in February, the first of its kind in 27 years, said State Sen. Alessandra Biaggi, hearing co-chair.
“It was universally found that there was a lack of reliable policy and standard reporting structures that address victims in a trauma-informed manner,” Biaggi said. “Critical gaps and obstructions impede timely and complete reporting of harassing behaviors.”
That isn’t the only reason for urgency on the legislators’ part.
“DHR has seen a dramatic rise of complaints coming forward,” said the state’s Division of Human Rights’ Deputy Commissioner for Enforcement, Melissa Franco, during her testimony at the hearing.
DHR handles discrimination cases, including sexual harassment. There has been a 62 percent increase of individual sexual harassment complaints filed with the division since 2016, Franco said. The city’s Commision on Human Rights also saw their caseload double after the #MeToo movement began in late 2017, said CHR Deputy Commissioner for Intergovernmental Affairs and Policy Dana Sussman.
Lawmakers grilled representatives from both the state’s DHR and the city’s CHR, as state lawmakers explore New York City’s model of dealing with workplace sexual harassment to see if it would be beneficial for the state to follow suit.
The city’s commission has chosen for the last 10 years not to use the “severe and pervasive” standard, instead operating on a lower standard that enables more people to win claims of harassment.
“I think expectations of workplace conduct in 2019, or, at least for the past few decades, have comported more closely with the ‘being treated less well because of your gender’ standard than the ‘severe and pervasive’ standard,” said Sussman. “What’s interesting is it seems like the law needs to catch up to what the current expectations of conduct are in the workplace.”
Assemblymember Marcos Crespo asked DHR Deputy Commissioner for Regional Affairs and Federal Programs Gina Martinez if the state would be open to the city’s methods.
Martinez said that the agency would enforce whatever laws are established by the lawmakers. She noted, however, that state sexual harassment cases saw a probable cause rate of about 25 percent, which she said was “pretty high.” She said the state has a strong system for sexual harassment victims to file complaints.
Crespo, who is also a co-chair of the hearings, was criticized earlier this year for his conservative voting record, including voting against women’s reproductive rights almost every year, NY1 reported.
Lawmakers appeared to grow frustrated with Martinez and Franco’s repeated assertions that they would follow any new legislation, but could not give input in policy decisions, as the state agency was an “enforcement” agency, not an “advisory” one, and had to remain neutral, according to Franco and Martinez.
“The testimony that the state is giving here, it’s all about how proud you are, how happy you are about the work that you do, how efficient you do things. It’s as if there are no problems whatsoever,” said Queens State Sen. John Liu, adding that they sounded “defensive” when responding to some questions.
Liu cited the city commision’s testimony as directly stating that the law should be changed, taking measures like correcting case law and changing the standard, compared to DHR’s unwillingness to take a stance on policy.
Martinez said it was not DHR’s role to take a stance.
“If we are to remain neutral and enforce the laws as they are, any opinion that we gave would be inappropriate,” Martinez said.
Liu and other lawmakers urged DHR to give opinions on what could be done to improve the law. Liu and Biaggi offered examples of other times agencies and governmental figures gave direct input on how laws could be improved.
State Sen. Jessica Ramos and Assemblymember Aravella Simotas, two women’s rights advocates from Queens, also attended the hearing, where lawmakers also explored statutes of limitations; whether victims should have an agency handle their case or take it to a court; and appropriate protections for individuals who have filed complaints and await pending cases.