Recent New York legislation will allow a class of sexual abuse victims to sue their abusers, where they previously would have been time-barred. Specifically, according to New York’s Adult Survivors Act (the “Act”), on November 24, 2022, New York will open a one-year “lookback” window that permits victims who suffered older sexual abuse claims to file suit, regardless of when the abuse occurred. The Act applies to victims who were eighteen or older when the abuse occurred and permits those victims to file sexual abuse claims previously barred by applicable statutes of limitations, regardless of when the alleged incident occurred.
Background
Previously, New York extended the statute of limitations to 20 years for adults filing civil lawsuits for certain sex offenses, but that legislation did not apply retroactively. Instead, the Act permits individuals who were the victim of a sexual crime, that occurred when they were 18 or over, but is currently time-barred, to file a timely claim between November 24, 2022, and November 24, 2023. The one-year window only applies to otherwise time-barred allegations, regardless of when they occurred. Sexual offenses include, but are not limited to, sexual misconduct, rape, criminal sexual acts, forcible touching, sexual abuse, and sexual assault.
Impact on Employers
The Act permits claims against the person who committed the sexual offense and permits claims against institutions (including the person’s employer) for negligent or intentional acts as well. Even though the abuse may have occurred decades earlier, the plaintiff still bears the burden of proof and may face high evidentiary hurdles. If successful, a plaintiff can recover from both the individual and/or the employer for economic, compensatory, and punitive damages.
To prepare for the expected wave of litigation, companies should consider re-opening and or initiating investigations into prior complaints involving sexual offenses that would qualify under the Act. These investigations will likely face certain obstacles, including that the employer may no longer employ the parties or witnesses involved, or the employer may not have retained the necessary documents. Of course, to protect the best confidentiality of the situation, employers will need to be extremely sensitive when reaching out to employees no longer employed at the company.
Key Takeaways
As a result of the Act, employers should prepare for an increase in complaints and potential litigation connected to previously outdated claims of abuse, which means it is time to prepare. As a best practice, employers should review their handbooks and related policies to ensure adequate reporting, complaint submission, and investigation procedures and confirm that the employer has distributed the materials to employees and that employees have options for reporting potential complaints. Similarly, employers should:
- Review old insurance policies and attempt to track down policies from decades ago;
- Track down old policies and procedures for investigating internal sexual assault and/or sexual harassment allegations;
- Locate any documents relating to prior sexual harassment and sexual assault internal investigations; and
- Track down personnel files and contact information of long-departed employees.
Although these steps cannot guarantee an employer will escape liability under the Act, now is a good time to start preparing for the potential surge in older claims of sexual abuse.
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About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://
