Excerpted from a Seyfarth Shaw LLP Blog by Karen Y. Bitar
For any company doing business in New York, this coming November 24 represents more than just Thanksgiving. It will also initiate a one-year period in which any person who claims to have suffered sexual abuse at any time in the past (so long as they were over 18 when the abuse occurred) will be able to sue their abusers, as well as any other person or entity they allege was responsible.
For this reason, any company with a longstanding presence in New York state with a significant number of employees should take steps to protect itself against what will likely be a large influx of sexual abuse and/or sexual harassment litigation.
The Adult Survivors Act (ASA) was signed into law last May. For a 12-month window beginning November 24, the ASA will revive all civil claims based on criminal sexual abuse committed against adult victims that were not brought within the time period required by the statute of limitations. Specifically, the ASA opens the books for any previously unlitigated claim “brought against any party 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.” This includes claims that had previously been dismissed on statute of limitations grounds.
To define “sexual offense,” the ASA looks largely to Article 130 of the New York Penal Code, which means that claims can be predicated on any of a large category of offenses ranging from forcible touching to rape. The ASA covers essentially any form of nonconsensual sexual physical contact and can form the basis for workplace sexual harassment claims.
The ASA is modeled on the Child Victims Act (CVA) New York passed in 2019. The CVA revived child sexual abuse claims in the same way the ASA will for adult claims, and it is estimated that the CVA resulted in over 10,000 lawsuits. It is possible the ASA will generate far more claims since it takes direct aim at corporate America.
The ASA could have monumental implications for any company with a large workforce in New York.
For one, companies could face claims based on incidents that are alleged to have happened decades ago whether or not a complaint was made at the time. This means any current or former employee can assert a claim against any current or former co-worker and the company that employed them for decades-old conduct. Claims like these will present significant evidentiary challenges.
In addition, the insurance ramifications will likely be significant as both policyholders and insurers may have to search through records dating back 50 years or more to analyze applicable policies and make coverage determinations.
At the broadest level, ASA actions might threaten significant reputational harm to defendant companies—to say nothing of their exposure to compensatory damages and attorneys’ fees.
Any company that may have liability exposure should strongly consider taking several actions as soon as possible, including:
- • Consider what information about prior lawsuits or allegations are in the public domain. This information may be used by alleged victims and their lawyers to assert claims. Capture that information and ask prior counsel to preserve any files which may be relevant.
• Identify key personnel that have institutional knowledge and proactively compile relevant “historical” documents. This includes internal records of sexual assault or harassment incidents, records maintained by your HR department and general counsel, and disclosures that may have been made to the company’s auditors or board of directors.
• Take stock of document retention policies and adjust them to ensure records material to sexual abuse or sexual harassment litigation are preserved.
• Locate past employee handbooks and any other documents that speak to your company’s efforts to protect its employees from abuse or harassment. Ensure your current policies are in full compliance with sexual harassment laws and your employees know the processes for the reporting and handling of complaints.
• Identify your advisors and attorneys in the event ASA claims are filed against you, including litigators who understand the issues unique to defending decades-old claims. Actions brought under the ASA will receive a trial preference.
Cases brought under the ASA will present unique challenges. Both the cost of litigation and settlements in this pro-victim environment can be high. In certain circumstances, early resolution may be a practical consideration. Taking steps now will ease the burden on your company and provide for maximum flexibility in the largely uncharted territory into which the ASA stands poised to take New York employers.
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