[co-author: Sophia Dauria]
Q: What is New York’s Adult Survivors Act?
On May 24, New York State enacted the Adult Survivors Act, which provides a one-year “revival window,” commencing on November 24, 2022, for adult victims of sexual abuse. Enactment of such “revival statutes” (a/k/a revival window or lookback period statutes) is the latest trend for #MeToo era legislatures grappling with shifting societal views of limitations periods for sexual abuse claims. Although the parameters of revival statutes can differ, essentially, they provide a limited period, usually at least one year, for sexual abuse victims to file civil claims that would otherwise be time-barred. Often these statutes also include prospective enlargements of civil and criminal limitations periods or otherwise expand the scope of potential liability going forward. In recent years, nearly half of U.S. state legislatures have passed laws opening revival windows for sexual abuse cases.
Q: Why does New York’s Adult Survivors Act matter to employers?
In addition to the rise of revival statutes, the #MeToo movement has generated a trend of litigation brought against employers and other entities for vicarious liability, i.e., sexual abuse claims brought against defendants other than the abuser. These are often brought as claims for such things as: aiding and abetting the abuse, transporter liability, benefitting from sex trafficking under the Trafficking Victims Protection Act (TVPA), civil RICO violations, negligent hiring, negligent security, premises liability, and common law negligence. The reason for the rise in vicarious liability claims is obvious: employers typically have deeper pockets, including (perceived or actual) insurance coverage for such claims.
Q: What can employers do to defend against such claims?
Often, defenses are available to employers, but must be pursued tactfully. For example, aiders and abettors of sex trafficking are liable under the TVPA only if they knowingly “benefit, financially or by receiving anything of value, from participation in a venture which has engaged in” sex trafficking. While employees, by definition, typically provide benefit to their employers, to satisfy the TVPA, that benefit has to be “because of” the sexual misconduct. Similarly, in order to plead a negligence claim against a third party, a plaintiff must sufficiently allege a legally cognizable duty owed to the Plaintiff. Allegations that an employer merely failed to act to prevent harm to an adult is not sufficient to allege that duty.
Q: How likely is it that the Adult Survivors Act will generate lawsuits against employers?
Despite the number of defenses available to employers and organizations being sued for vicarious liability, revival statutes have been demonstrably successful in encouraging pursuit of civil litigation against them. During New York’s two-year revival window for minor victims under its 2019 Child Victim’s Act (extended from an original one-year window period), over 10,000 cases were filed utilizing the statute — many against defendants other than the alleged abusers — with the first reported jury verdict reaching $25 million. After New Jersey opened a similar revival window for individuals abused as children, the Diocese of Camden, New Jersey, settled claims made by hundreds of abuse survivors for $87.5 million. Several high-profile targets of claims arising from revival statutes were forced to file for bankruptcy as a result of their passage and subsequent flood of legal claims. Modeled on New York’s Child Victims Act, New York’s Adult Survivors Act is likewise expected to generate significant litigation.
Q: Are there other upcoming revival windows impacting employers who have or ever had a New York presence?
In addition to New York State’s legislation, New York City recently amended its Victims of Gender-Motivated Violence Protection Law to provide for a revival window for persons “claiming to be injured by a party who commits, directs, enables, participates in, or conspires in the commission of a crime of violence motivated by gender.” Notably, this revival window applies to adults as well as minors. The window opens next year, on March 1, 2023, and will remain open for two years.
Q: What should employers do before the revival windows open?
Given the success of these statutes in generating litigation and the recent passage of New York’s Adult Survivors Act, it is imperative that employers investigate potential exposure before relevant window periods take effect. In some cases, revival statutes lead to legal claims arising out of conduct dating back decades, thereby implicating extremely complex insurance and liability issues. Thus, internal investigations should include comprehensive fact investigations of current and prior employees, an assessment of the entity’s current and former procedures for handling internal sexual assault or sexual harassment allegations, analysis of the entity’s insurance coverage, and an appraisal of whether an independently administered claims program is an appropriate way to resolve future legal claims.
Q: What is a claims program?
Such formal claims programs can take many shapes and sizes. Some are structured so that a completely neutral third party makes all decisions regarding qualifications to participate in the program and the amount of damages awards. Some programs borrow elements of mediation, involving an independent decision-maker, but requiring more involvement from the parties, themselves. This type of program allows survivors of sexual abuse to be heard, which can help in their healing process. Due to the sensitivity of the issues raised, the likelihood of significant litigation fees, and the possibility of large, adverse verdicts, potentially liable entities should consider such alternative methods of resolution. Employers should thus seek counsel experienced with such matters and processes.
Q: What counsel do employers need to properly deal with revival laws?
The most critical consideration for employers assessing liability under revival windows is to find counsel who can handle such matters responsibly. Counsel representing employers in sexual assault cases must consider numerous factors not typically present in commercial litigation, such as the employer’s standing and reputation in the community, the potential for a plaintiff to become re-traumatized or triggered by the litigation, the stigma surrounding confidential settlements or nondisclosure agreements, and (if applicable) the selection of third party neutrals who have trauma-informed training and/or experience in sexual assault cases. An employer’s litigation strategy must be informed by these and other similar considerations unique to vicarious liability sexual assault claims. Employers with potential liability for such claims should thus hire counsel with a track record demonstrating the ability to handle such sensitive issues effectively.