Employers conducting business in New York face an increased risk of litigation due to the recently passed Adult Survivors Act (ASA). The ASA temporarily suspends the statute of limitations for civil suits alleging sexual harassment and other sexual offenses. The civil suits will affect employers based in New York, as well as employers in any venue where violations of New York law can be alleged.
The one-year “lookback window” to file a lawsuit began on November 24, 2022 and ends on November 24, 2023. Accusers can bring previously unraised claims and revive old claims that were dismissed on statute of limitations grounds. However, claims that were fully resolved, such as those that were settled or released, cannot be revived.
Employers May Be Held Liable
Responding to allegations of sexual harassment in the workplace is a reality that many employers must navigate. Under New York law, sexual offenses include, but are not limited to, sexual misconduct, rape, criminal sexual acts, forcible touching, sexual abuse, and sexual assault. If the harassment involves physical touching, coerced physical confinement, or coerced sex acts, the conduct may constitute a crime that can be prosecuted. However, that same conduct can also become the foundation for a civil tort or discrimination claim brought by a plaintiff against the alleged individual perpetrator and/or the perpetrator’s employer.
The scope of the ASA is quite broad. It opens the door to every civil claim or cause of action which alleges intentional or negligent acts or omissions for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense. The potential damages depend on the cause of action raised. Causes which seem ripe for action under the ASA include those provided for by the or state tort law. Consequently, damages may include compensatory and punitive damages and, in some instances, attorney’s fees.
Nondisclosure Agreements Will Not Protect Against These Claims
Nondisclosure agreements, which workers frequently sign as part of the hiring process, have long been used to prevent accusers from going public with these kinds of allegations.
However, on December 7, 2022, President Biden signed the Speak Out Act into law, which invalidates such agreements in sexual-assault and sexual-harassment cases. This new federal law renders unenforceable non-disclosure and non-disparagement clauses related to allegations of sexual assault and sexual harassment that are entered into “before the dispute arises.” The Speak Out Act is not retroactive. That said, the law applies to any disputes alleging nonconsensual sexual acts, contact, or harassment which are filed after December 7, 2022, regardless of when the alleged underlying conduct occurred.
Employers can likely continue to include enforceable non-disclosure and non-disparagement clauses in agreements resolving allegations of sexual harassment or sexual assault. However, employers will not be able to enforce blanket non-disclosure or non-disparagement provisions if the provision was entered into before the alleged sexual harassment or sexual assault occurred.
The combined effect of the ASA and Speak Out Act is that the legal landscape has dramatically shifted for employers in addressing and responding to these civil claims.
How to Prepare
In addition to these legal changes, there are some factual realities that are critical to consider. Chief among them is the fact that defending against an older case poses substantial challenges for an employer. The unavailability of exonerating witnesses, fading memories, and key documents that were not preserved, highlight just some of those challenges.
Employers should actively prepare for possible litigation of otherwise-time-barred claims by collecting all documents that will be essential to their defense. Best practices could include conducting internal reviews of insurance policies and attempting to track down anti-harassment policies from decades ago, locating old policies and procedures for investigating internal sexual assault and/or sexual harassment allegations, gathering any documents relating to prior sexual harassment and sexual assault internal investigations, and retrieving personnel files and contact information of long-departed employees who were involved in any potential alleged incidents.
While defending these kinds of accusations in the #MeToo climate can seem like an uphill battle, there are potential defenses to consider against ASA-fueled claims. Buchanan Ingersoll & Rooney attorneys have experience counseling employers as they respond to accusations related to sexually offensive conduct and are here to begin preparing your preemptive defense. If litigation ensues, our attorneys are experienced defending these types of claims—regardless of how long ago they occurred.