Sexual harassment case allowed to proceed against Westchester hospital

Westchester Medical Center's motion to dismiss was denied, allowing sexual harassment claims to go forward, in the case of Doe v. MidHudson Regional Hospital of the Westchester Medical Center, et al., 53972/2019.

In that case, the hospital lost its argument that Jane Doe (proceeding under a pseudonym) was required to serve a notice of claim within ninety days of the harassment, and sexual assault, or else she was foreclosed from suing under the New York State Human Rights Law (NYSHRL), against Westchester County Health Care Corporation. The Court disagreed.

In the October 29, 2019 decision, Westchester Supreme Court followed Margerum v. City of Buffalo, 24 N.Y.3d 721 (2015) in which the New York Court of Appeals held that “a notice of claim need not be filed for a Human Rights Law claim against a municipality” under GML §50-I, which is limited to torts and wrongful death actions.

Since 2015, several courts have refused to extend Margerum to actions brought against counties, holding that the notice of claim requirement under County Law §52 is broader than GML §50-I, and thus applies to statutory claims. For instance, in Sager v. County of Sullivan, 145 A.D.3d 1175, (3d Dept. 2016), leave to appeal denied 29 N.Y.3d 902 (2017), a whistleblower action was dismissed for failure to serve a notice of claim on the County of Sullivan under County Law 52.

However, there has not been a prior decision interpreting Public Authorities Law §3316, the notice of claim statute that applies to Westchester County Health Care Corporation, which operates Westchester Medical Center and its affiliates.

This case is significant because, for the first time, it determines that Public Authorities Law §3316 is similar to GML §50-I in that a notice of claim is only required for torts, and discrimination actions brought under NYSHRL are not torts - so no notice of claim is needed before filing a complaint in State or Federal Court. Westchester Medical Center’s argument that a notice of claim was required was rejected and its Motion to Dismiss was denied.

Plaintiff Jane Doe is represented by the Law Office of Laura Wong-Pan PLLC.

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The New York State Legislature has been busy strengthening New York employment laws.

Last week, the State Legislature passed bills which make dramatic changes to New York Human Rights Law. The next step is for Governor Cuomo to sign the Bills. This article summarizes what is in store for employers and employees.

The new legislation is an employee-friendly bill that expands existing laws, by providing new remedies for employees who are discriminated against based on race, gender, sexual orientation, or other protected categories. The legislation goes further than Federal law, by changing the minimal level of evidence necessary to prove a discrimination claim, extending discrimination protections to independent contractors, and limiting certain defenses available to employers.

Here are some of the significant changes, if Bill S6577/A8421 is signed into law:

1. All employers, not just those with four or more employees, will be subject to liability under the New York Human Rights Law, based on the expanded definition of “employer” under New York Executive Law §292(5).

2. The legislation extends protection against discriminatory practices to contractors, vendors, consultants, and others who may have been discriminated against in a particular workplace. (Section 296-d of NYHRL only extended protection to non-employees in the event of sexual harassment. This bill extends the protection for other forms of harassment and discrimination).

3. If, after a trial, an employer is deemed liable for employment discrimination, plaintiffs may recovery their attorney’s fees. Presently, employee/plaintiffs may only recover attorney's fees under Federal law.

4. Under this legislation, confidentiality or nondisclosure clauses in settlement agreements would be invalid, “unless the condition of confidentiality is the complainant’s preference.”

5. The legislation prohibits mandatory arbitration clauses to resolve any allegation or claim of discrimination.

6. The statute of limitations for all sexual harassment claims will be extended to three years.

7. The legislation changes the manner in which harassment/hostile work environment claims are proven. An employee or other person covered by NYHRL does not not to prove that the harassment was “severe and pervasive” in order to establish liability. Instead, the complainant must meet a lower standard of proof, including that he or she was subject to “inferior terms, conditions or privileges of employment” based on membership in a protected category (age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, opposing discrimination.

8. An employee's failure to follow the internal complaint procedure, will no longer be a full defense to a lawsuit alleging harassment.

9. The employer may raise a defense that the harassing conduct is so minor that it would be perceived as ‘petty slights or trivial inconveniences” by a “reasonable victim of discrimination.” This alters the common “reasonable person” standard, instead requiring that the conduct be viewed from the shoes of a "reasonable victim.”

10. Employer will be required to distribute a notice containing the employer’s sexual harassment prevention policy, and additional information presented at the annual sexual harassment training.

For more information:

Law Office of Laura Wong-Pan PLLC

845-218-1288.

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