Executive Summary. In groundbreaking legislation last year, New York State amended its Human Rights Law ("NYSHRL") to prohibit sexual harassment against non-employees of all types, including models, stylists, and artists in the fashion industry who are classified (correctly or not) as independent contractors. Because of this amendment, “IRS Form 1099” workers throughout NYS will have the same sexual harassment and retaliation protections as “IRS Form W-2” employees. They can file internal sexual harassment claims with the talent agencies that assign them or the companies that actually engage them or file legal complaints with the NYS Division of Human Rights or in court. Businesses referring or engaging even one independent contractor are covered. For independent contractors who work in NYC, this amendment adds statewide protections to existing NYC sexual harassment protection under the NYC Human Rights law. (“NYCHRL”)
With both NYS and NYC widely publicizing their protection of independent contractors against sexual harassment, industries where independent contractors predominate, like the fashion industry, will have to take immediate preventive measures to minimize potential liability, such as reviewing independent contractor working conditions and personal conduct norms and standards, especially in offsite work locations, and amending sexual harassment policies and training to include independent contractors.
Who Does the Amendment Cover in the Fashion Industry?
Effective April 12, 2018, NYS made it an unlawful discriminatory practice “for an employer to permit sexual harassment of non-employees in its workplace” regardless of the employer’s number of workers. “Non-employees” covers not only independent contractors, but also “gig” workers, temporary employees, and interns, paid or unpaid, and anyone who is employed by an employer’s contractor, subcontractor, vendor or consultant. The harasser can be a supervisor, co-worker (employee or independent contractor), a client or customer, a visitor or any other non-employee doing business with the employer or on the employer’s premises. Sexual harassment by men who sexually harass women or men and vice versa and sexual harassment that occurs because of sexual orientation, gender identity or transgender status is all unlawful. “Workplace” includes offices, offsite work locations, and business-related events outside those locations.
How Does the Amendment Impact Fashion Industry Businesses?
Liability under the NYSHRL is imposed "when the employer, its agents or supervisors knew or should have known that such non-employee was subjected to sexual harassment in the employer’s workplace, and the employer failed to take immediate and appropriate corrective action.” The “should have known” standard means liability is imposed if a manager and supervisor was negligent in not complying with the employer’s policy on sexual harassment. Retaliation by any adverse action for reporting, formally or informally, participating in or cooperating with any proceeding or investigation of sexual harassment is prohibited.
Proving sexual harassment under the NYSHRL requires evidence that the harassment was “severe and pervasive.” By comparison, proving sexual harassment under the NYCHRL may be easier, only requiring proof “by a preponderance of the evidence that (the claimant) has been treated less well than others because of his or her sex.” What is more, a business that is liable under the NYCHRL only has the defense that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider a “petty slight or trivial inconvenience.”
Why Is this Legal Protection Important to Fashion Industry Workers?
Historically, individuals who work as independent contractors in the fashion industry have enjoyed few labor and employment law protections. Even though their working conditions, hours and unique offsite work locations often blur business and social norms, until NYC and then NYS protected independent contractors against sexual harassment, they had no legal recourse. If they were sexually harassed or abused, their option was either to work in silence, complain to the talent agency that assigned them or the companies that actually engaged them and see if the agency or company would support them, or quit the assignment. However, without legal protection against retaliation, both complaining and quitting had potentially serious consequences. The independent contractor could be denied future assignments and jobs.
Under the NYS amendment, as well as existing NYC law, independent contractors and other non-employees in the fashion industry have been given legal recourse. For these individuals, this creates a shield that allows them to speak out against sexual harassment in the workplace and to support each other’s claim, without fear of retaliation or reprisal.
For the fashion industry, these laws create legal exposure. To minimize potential claims, fashion industry businesses must review the working conditions of their independent contractors, especially in offsite work locations. Business norms and standards must prevail where social norms and standards previously have been allowed. Claims of sexual harassment of independent contractors must be investigated and, if substantiated, the appropriate remedial action must be taken. Sexual harassment policies must be revised to state explicitly that sexual harassment protection extends to independent contractors and other non-employees. Anti-sexual harassment training must include examples of independent contractor sexual harassment, showing when, where and how this may occur, regardless of whether the harasser is an employee, another independent contractor or anyone else providing services to the fashion industry business.
What Other Changes in Sexual Harassment Law Impact the Fashion Industry?
Under NYS law, by October 9, 2019, all employers, including those in the fashion industry, must conduct interactive sexual harassment training for all employees and distribute copies of the employer’s sexual harassment policy, both before hire and annually. NYS also recommends training for independent contractors and distributing the employer’s sexual harassment policy to them.
Under NYC law, by April 1, 2019, employers with 15 or more employees must conduct annual sexual harassment training for all employees, and initiate training 90 days after hire for those who work 80 or more hours in a calendar year. Both employees and independent contractors employed in the previous year are counted toward the minimum of 15. All employers in NYC should have already displayed the NYC Commission on Human Rights information sheet on sexual harassment and provided all new hires with this information sheet. This requirement applies to independent contractors as well as to employees and went into effect September 6, 2018.
The Bottom Line. The amendment to the NYSHRL which covers independent contractors wherever they work in NYS, combined with the NYCHRL, which covers independent contractors in NYC, gives models, stylists, artists and others in the fashion industry protection from sexual harassment. At the same time, it creates a new legal exposure for the talent agencies that assign these workers and the businesses that provide them work.
FordHarrison LLP provides advice and counsel on all issues relating to labor, employment and benefits, including, but not limited to, sexual harassment. If you have any questions regarding this Legal Alert or would like our advice about particular facts and circumstances at your workplace, please contact the author, Stephen Zweig at szweig@fordharrison.com or 212-453-5906 in FordHarrison's New York City office, or the FordHarrison attorney with whom you usually work.