Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
New York State’s Adult Survivors Act (ASA), which was enacted on November 24, 2022, amends the state’s statute of limitations for civil claims alleging certain sexual offenses—which may include any unwanted sexual contact in the workplace—committed against individuals age 18 or older. Individuals alleging “intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense…or incest,” as defined by New York penal law, may sue under the ASA, irrespective of when the offense occurred. The ASA’s one-year lookback period allows those individuals to commence a civil action under this act as late as November 24, 2023. Prior to the ASA, these allegations would have been time-barred.
This temporary elimination of the statute of limitations applies only to civil claims. Therefore, the remedy the plaintiff seeks is monetary, usually associated with alleged emotional distress or physical harm associated with the past alleged sexual offense. Claims can be brought against individual defendants as well as former or current employers, as well as educational and religious institutions, if the plaintiff alleges that the entity, intentionally or negligently, caused physical, psychological, or other injury arising out of the alleged sexual offense.
Claims previously brought and dismissed with or without prejudice, because they were barred by the statute of limitations, may be brought again through the ASA lookback mechanism. The ASA also grants trial preference to actions brought under the Act. Additionally, the ASA includes a provision, which will take effect on February 24, 2023, ordering the courts to promulgate additional rules regarding the adjudication of the above-described actions.
An addition to New York #MeToo legislation
New York already has some of longest statutes of limitations in the country for civil claims of unwanted sexual touching against employers. New York City’s Victims of Gender-Motivated Violence Protection Act permits alleged victims to bring claims within seven years of the alleged physical violation, and CPLR 213-c, which was amended in September 2019, also is used to bring civil claims of sexual assault under a 20-year statute of limitations. The ASA is, however, the only law that not only is retroactive but also permits a lifetime lookback window, making it a true one-of-its-kind #MeToo law.
The ASA is one of many legislative changes since the height of the #MeToo movement.1 New York was one of the first states to require all employers to train employees annually in sexual harassment prevention. Currently, eight jurisdictions require employers to train their workforce on preventing sexual harassment: California, Connecticut, Delaware, District of Columbia, Illinois (special requirements for Chicago), Maine, New York (special requirements for NYC), and Washington.2 Many states also require employers to maintain and distribute sexual harassment prevention policies. Just last month, New York published a more stringent 11-page model policy for New York employers to adopt. Employers can review this template here. This proposed policy is not yet final, as it was available for a review and feedback window, which closed on February 11, 2023.
#MeToo laws are also alive and well on a national scale. The Speak Out Act, signed into law by President Biden on December 7, 2022, now invalidates non-disclosure agreements (NDAs) that were entered into between the employee and employer before a complaint of harassment or assault arose. Parties can still agree to an NDA but it must be an agreement entered into after the workplace dispute arises. New York also previously applied greater burdens on parties seeking to resolve a conflict about a harassment/discrimination complaint with an NDA so that an NDA must be the preference of the employee, and there must be a non-waivable 21-day consideration period and 7-day revocation period. The role of an NDA as a mechanism to resolve conflicts that arise through factual disputes continues to be hotly debated.
Potential Impact on Employers and Educational Religious Institutions and Next Steps
An individual suing using the lookback provision of the ASA may choose to sue a former manager or employer they feel is responsible for a past incident of unwanted sexual touching. The employer need not have had direct knowledge of or involvement in the alleged abuse to be sued. While each ASA claim may be different, there are viable defenses to such claims. Accordingly, New York employers should prepare to defend claims brought under the ASA, which could involve former employees and stale actions. New York employers should consult an attorney when they receive an action or threat of action that utilizes the ASA. Further, New York employers should consult an attorney with workplace violence subject matter experience on internal protocols in responding to such allegations and preventing sexual assault and unwanted touching generally in the workplace.
1 See, e.g., Devjani Mishra and Emily Haigh, New York State Significantly Expands its Workplace Harassment Laws (Again), Littler ASAP (June 20, 2019); New York State and City Expand Anti-Harassment Requirements for Employers, Littler Insight (Apr. 13, 2018).
2 Washington requires training only for employers who are a hotel, motel, or security guard entity. D.C. requires training only for employers with tipped employees. Florida does not require employers to provide training related to discrimination and harassment. However, the state has imposed restrictions on the content of employer-provided training if an employer chooses to train its workforce.