Original article date: June 3, 2019

The Equal Employment Opportunity Commission (EEOC) is the federal agency that can and will investigate sexual harassment allegations, along with other discriminatory allegations made against an organization, supervisors, managers or employees.   An individual can file a complaint with the EEOC anytime within 300 days from the alleged sexual harassment or discriminatory allegation, as defined by the federal law.  As outlined in the NYS Sexual Harassment training slides, the individual does not need an attorney to file and the individual must file the complaint with the EEOC prior to filing in federal court.  What does the EEOC look for in a sexual harassment allegation against an organization or the employees in the organization?  How have they defined severe and pervasive?  Can this change?  Yes, and it can change quick during the #MeToo environment. 

Convincing a fact-finder:

• Severe or Pervasive: enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

• Unwelcomed: individual has to prove to the fact-finder the conduct was unwarranted and unwelcome.

• Rendered the plaintiff’s working environment both objectively and subjectively hostile/abusive.

Courts Defining Severe or Pervasive:

• The level of offensiveness of the unwelcomed speech or conduct.

• The frequency of occurrence of such conduct or speech.

• Length of time over which the alleged harassment occurred.

• The context in which the challenged conduct occurred.

EEOC Sexual Harassment Website

NYS Division of Human Rights (DHR)

A complaint alleging violation of the Human Rights Law may be filed either with DHR or in NYS Supreme Court.  Complaints may be filed with DHR any time within one year of the alleged sexual harassment, no attorney needed to file.  Filing in the NYS Supreme Court can occur any time within three years.

“Although the Human Rights Law applies generally to employers with four or more employees, the sexual harassment provisions apply to ALL employers in New York State, regardless of the number of employees. Sexual Harassment in the Workplace Sexually harassing conduct can consist of unwanted verbal or physical sexual advances, sexually explicit statements, or discriminatory remarks that are off­ensive or objectionable to the recipient.

Examples include:

• Requests for sexual favors, which may be accompanied by implied or overt threats concerning one’s job performance evaluation or promotion.
• Subtle or obvious pressure for unwelcome sexual activities.
• Verbal harassment or abuse in the form of a pattern of sexual comments or questions.
• Unnecessary or inappropriate physical contact.
• Displays of lewd photographs or drawings.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute unlawful sexual harassment when:

• Submission to such conduct is made (either explicitly or implicitly) a term or condition of employment;
• Submission to, or rejection, of such conduct is used as a basis for decisions aff­ecting one’s employment; or
• Such conduct has the purpose or e­ffect of interfering with an individual’s work performance, or creating an intimidating, hostile or o­ffensive working environment.”[i]

NYS Sexual Harassment Information Link

[ii]

Potential Future Changes in NYS:

A bill has been introduced in the NYS Legislature that would add language to the Human Rights Law which includes; “Harassment is not limited only to those actions that are severe or pervasive.”  The law currently reads, “Harassment includes the types of actions that have been found by the courts to create a hostile environment or a tangible job detriment.  Such actions are an unlawful discriminatory practice when they result in a person or persons being treated not as well as others because of a protected characteristic.  Harassment does not include what a reasonable person with the same protected characteristic would consider petty slights or trivial inconveniences.” A broad expansion to the law has the potential of expanding what harassment and sexual harassment how the state and court system define workplace harassment.  Continue to monitor for any changes and updates to this legislation, it will impact all organizations throughout the state. 

[iii]

*This can include retaliation on other protected categories under Title VII

California Sexual Harassment Laws

“California Code of Civil Procedure Section 1001 prohibits public and private employers of any size from settling lawsuits and administrative claims using agreements that prevent the disclosure of factual information regarding:

• Sexual assault.
• Sexual harassment.
• Workplace harassment or discrimination based on sex.
• The failure to prevent acts of workplace harassment or sex discrimination.
• Retaliation against workers who report sexual harassment or sex discrimination.

Section 1001 was enacted to eliminate secret settlements that historically silenced survivors of harassment and assault and kept them from revealing the details of sexual-harassment cases.”[iv]

2020 vs. 2019 HSA Contribution Limits

Contribution and Out-of-Pocket Limits
	2020	2019	Change
HSA contribution limit(employer + employee)	Self-only: $3,550  Family: $7,100	Self-only: $3,500  Family: $7,000	Self-only: +$50  Family: +$100
HSA catch-up contributions (age 55 or older)	$1,000	$1,000	No change
HDHP minimum deductibles	Self-only: $1,400  Family: $2,800	Self-only: $1,350  Family: $2,700	Self-only: +$50  Family: +100
HDHP maximum out-of-pocket amounts (deductibles, co-payments and other amounts, but not premiums)	Self-only: $6,900  Family: $13,800	Self-only: $6,750  Family: $13,500	Self-only: +$150  Family: +$300
Source: IRS, Revenue Procedure 2019-25.

[v]

NYS Worker’s Compensation Board Updates to Disability Benefits Claim Forms 5/28/19

“The New York State Workers’ Compensation Board (WCB) has made updates to forms that are used for disability benefits claims. Two disability benefits claim forms have been updated to streamline the process of reviewing a total or partial payer rejection of a disability benefits claim, while two other disability benefits forms have been made obsolete. In addition, the mailing address of the Board’s Disability Benefits Bureau has changed.

Notice and Proof of Claim for Disability Benefits (Form DB-450)

The Notice and Proof of Claim for Disability Benefits (Form DB-450) has been updated to collect additional clarifying information regarding eligibility and collection of other benefits (e.g., workers’ compensation, unemployment insurance, etc.) that impact eligibility for disability benefits.

Part A must be completed by the claimant, and Part B must be completed by the claimant’s health care provider prior to submission. The form may be submitted to either the claimant’s employer or payer but must be submitted within 30 days of the first day of work missed due to disability.

Claimants may visit Forms or contact their employer or payer to obtain this form. Use of version 5/19 of the form will be effective June 1, 2019. Version 9/17 of the form will continue to be accepted through September 30, 2019.

Notice of Total or Partial Rejection of Claim for Disability Benefits (Form DB-451)

The Notice of Total or Partial Rejection of Claim for Disability Benefits (Form DB-451) has been updated to provide a more comprehensive list of rejection reasons and provide clearer instructions on how the form and different rejection reasons should be used.”[vi]

Notice and Proof of Claim for Disability Benefits DB-450 Form

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[i] https://dhr.ny.gov/sites/default/files/pdf/sexual-harassment.pdf

[ii] Joel Wm. Friedman, Examples & Explanations: Employment Discrimination. Third Edition (Wolters Kluwer 2017).

[iii] Joel Wm. Friedman, Examples & Explanations: Employment Discrimination. Third Edition (Wolters Kluwer 2017).

[iv] SHRM Article

[v] SHRM Email

[vi] http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1173.jsp