Firm: FordHarrison LLP
In New York State, the State Human Rights Law (‘HRL’) was recently amended to prohibit sexual harassment against independent contractors. This is a major extension of sexual harassment protection with significant liability exposure for employers. Freelancers, consultants, project contract workers, vendors and suppliers are now protected from sexual harassment on the job, the same as employees.
What does the amendment say?
It is an unlawful discriminatory practice in New York State ‘for an employer to permit sexual harassment of non-employees in its workplace.’ An employer is liable:
‘when the employer, its agents or supervisors knew or should have known that such non-employee was subjected to sexual harassment in the employer’s workplace, and the employer failed to take immediate and appropriate corrective action.’
As in the case of sexual harassment of employees, many questions remain, including the definition of sexual harassment and standard of proof. At present, the proof standard under the HRL is the same as under federal law, namely:
‘the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’
By comparison, under the New York City Human Rights Law, which also ostensibly covers independent contractors, sexual harassment exists when an individual is ‘treated less well than other employees because of gender.’ The sole proviso to this lesser standard is that the harassment must involve more than ‘petty slights or trivial inconveniences.’ Legislation has also been proposed to clarify and expand protection of independent contractors under this City law.
What effect will the amendment have?
By definition, independent contractors have more independence and flexibility than employees to decide who they want to work for, when and where. They can, theoretically, pick and choose their engagements and refuse to work for sexual harassers. But unconventional hours, unique working conditions, ill-defined duties and responsibilities, and working one-on-one without others present can provide opportunities for sexual harassers. Complaining may mean loss of an engagement and the steady work and income that comes with it, and loss of other opportunities when word gets around.
By giving independent contractors legal recourse, the amendment places them on a par with the employer's employees. This should have two immediate effects. First, independent contractors should feel less vulnerable to sexual harassment and more willing to report it. Second, employers should feel compelled to take greater precautions with an independent contractor's working conditions and the individuals they assign independent contractors to work with on the job.
The bottom line
Independent contractors are protected. Sexual harassment policies of employers who engage independent contractors will have to change to cover them as well as employees, and anti-sexual harassment training will have to be modified to include independent contractor rights.