Does The New York Adult Survivors Act Extend The Time For My Employees To Bring Sexual Harassment Lawsuits Against My Company In Manhattan?

This article will cover:

• The New York Adult Survivors Act, and that Act’s revival of sexual harassment claims, by employees against employers, for long-ago, unwelcome sexual conduct at work;
• Examples of sexual harassment in the workplace that violates the Adult Survivors Act, and implications for employers; and
• Best practices for employers to prepare for potential lawsuits under the NYASA, and steps to mitigate the risk of such lawsuits.

Yes.  Through November 24, 2023, the New York Adult Survivors Act (the “Adult Survivors Act” or the “NYASA”) allows employees to bring sexual harassment lawsuits against a company in Manhattan, regardless of how long ago the harassing conduct occurred, provided that the harassing conduct also constituted a sexual offense under the New York Penal Law, including, among other criminal activities, sexual misconduct or forcible touching.

In other words, the Adult Survivors Act, through November 24, 2023, eliminates the statutes of limitation for filing sexual harassment lawsuits against employers in Manhattan, provided that the harassing behavior, of a physical nature, also comprises a criminal sex offense in Manhattan, such as, for example, sexual misconduct or touching by force.

Because it is not a sex crime in New York State to engage in verbal, written, or visual harassment, the NYASA does not suspend the statutes of limitation for commencing sexual harassment lawsuits against employers in Manhattan where the harassing conduct is solely of a verbal, written, and/or visual character.

More specifically, the New York Adult Survivors Act, codified at N.Y. C.P.L.R. 214-j, 219-e, and 3403(7), provides that, for the one-year period from November 24, 2022 through November 24, 2023, all lawsuits brought by individuals who were 18 years of age or older at the time of the sexual conduct and who allege that they suffered physical or psychological injuries or conditions because of intentional or negligent acts or omissions that constitute a sexual offense as defined under Article 130 of the New York Penal Law, N.Y. Penal Law §§ 130.00 – 130.96, are timely.  Although the NYASA was not crafted as an employment law, the conduct proscribed by the NYASA may well include unwelcome sexual contact at work.

Under the NYASA, such a lawsuit, if filed from November 24, 2022 through November 24, 2023, is timely even if the applicable statute of limitation (the statutory period of time within which lawsuits must be filed) has expired, and even if the plaintiff previously brought a lawsuit which a court dismissed on the ground that the limitations period had expired.

The NYASA does not revive claims that have been resolved by a judgment of a court or by means of a settlement between the parties.  However, as stated, the Adult Survivors Act does revive claims that a court dismissed on the ground that the limitations period had expired.

The Adult Survivors Act directs the Chief Administrator of the New York state courts to issue rules for timely adjudicating revived actions brought under the NYASA.  Further, the Adult Survivors Act directs the New York state courts to grant a trial preference to lawsuits brought under the NYASA (that is, to hold the jury or bench trials of NYASA lawsuits before holding trials for other types of lawsuits).

The sexual offenses to which the Adult Survivors Act applies (regardless of the degree of the offense) are sexual misconduct, forcible touching, rape, criminal sexual acts, sexual abuse, persistent sexual abuse, aggravated sexual abuse, course of sexual conduct against a child, female genital mutilation, facilitating a sex offense with a controlled substance, sexually motivated felonies, predatory sexual assault, predatory sexual assault against a child, and incest.

For actions revived under the ASA, potential money damages depend on the cause of action being asserted.  Such money damages may include those provided for by the New York State Human Rights Law or by Manhattan common law.

What Are Examples Of Sexual Harassment At Work That Violates The New York Adult Survivors Act?

The New York Penal Law defines the criminal offense of sexual misconduct so as to include, among other misconduct, “engag[ing] in sexual intercourse with another person without such person’s consent” or “engag[ing] in oral sexual conduct or anal sexual conduct with another person without [that] person’s consent.”

So for example, where a supervisor demands that an employee have sex with him where granting or withholding of a job benefit is involved, and the employee, acceding to the supervisor’s demand, has sex with the supervisor, an NYASA lawsuit brought (by November 24, 2023) by the employee against the supervisor and their employer is timely, regardless of when the supervisor’s misconduct occurred.

Again, in Manhattan, the criminal offense of forcible touching occurs when (among other circumstances), a person intentionally, and for no legitimate purpose, “forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing [that] person, or for the purpose of gratifying the actor’s sexual desire.”  In Manhattan, the crime of forcible touching “includes squeezing, grabbing, or pinching.”

By way of example, where a supervisor or a coworker purposely squeezes, grabs or pinches an employee’s breasts or buttocks, a lawsuit brought (by November 24, 2023) by the employee against the supervisor or coworker and their employer is timely, even if the offending conduct took place many years ago.

Take-Aways For Employers

In light of the Adult Survivors Act, employers in Manhattan should review their employee handbooks and their other procedures for workers to make sure that the employers have robust whistleblowing, grievance submission, and investigation procedures.  Employers should verify that the company has disseminated these materials to employees, and that employees have avenues for making complaints.

Given the NYASA’s enactment, employers in Manhattan should consider reviewing their insurance policies (including employment practices liability insurance, if any) and any documents concerning employees’ past lawsuits against the employer that were dismissed as time-barred.  (Many companies retain employee records for only six years, which makes it very difficult for the companies to defend against employees’ lawsuits alleging that the employees were sexually assaulted many years ago.)

Through such a review, businesses may learn whether any of their workers’ past, unsuccessful lawsuits may be brought anew under the Adult Survivors Act; and, if so, whether the workers’ revived claims are covered by the companies’ insurance policies.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the Borough of Manhattan, call Borough of Manhattan Employment Lawyer David S. Rich at (347) 835-5688.