New York State Issues Updated Model Sexual Harassment Prevention Policy

Seyfarth Synopsis: New York State released a revised model sexual harassment policy highlighting a lower legal threshold for conduct to constitute sexual  harassment under the New York Human Rights Law and emphasizing through examples the applicability of the law to remote workspaces.  Employers with New York operations should review their sexual harassment policies and revise them accordingly to meet the new minimum standards outlined in the updated model policy.

Since 2018, New York employers have been required to maintain a written sexual harassment policy and provide annual anti-harassment training to their employees. The statute directed the New York State Department of Labor (“DOL”) to issue a sexual harassment model policy for employers to adopt and ensure compliance with statutory standards. In turn, New York employers were required to either adopt the DOL model policy or ensure that their own policy met or exceeded the standards set forth by the law and DOL guidance.

On April 11, 2023, the DOL issued an updated model policy, along with other updated materials.  The major changes include:

• A detailed explanation that the gender spectrum is nuanced and involves three common ways people identify: cisgender, transgender, and non-binary. The revised model policy now includes instructive definitions of cisgender, transgender and non-binary persons.
• Emphasis of a lower standard for harassment to be deemed to have occurred under New York state law, including that:
  • sexual harassment does not need to be severe or pervasive to be illegal; it can be any harassing behavior that rises above petty slights or trivial inconveniences;
  • whether conduct is considered petty or trivial will be viewed from the standpoint of a “reasonable victim of discrimination with the same protected characteristics.”; and
  • intent “does not neutralize a harassment claim;” lack of intent to harass is not a defense.
• An updated, non-exhaustive list of examples of sexual harassment and retaliation such as repeated requests for dates, gift giving, and asking employees to take on traditionally gendered roles.
• A new emphasis on the remote workplace, stating that harassing behavior can occur in virtual meetings, on personal cell phone applications, and extends to virtual workspaces, which may include having inappropriate  materials visible in the background of one’s home during a virtual meeting.
• New language in the section regarding “Supervisory Responsibilities” instructing supervisors to be mindful of the impact that harassment and a subsequent investigation has on victims.
• A new section on bystander intervention, which explains “five standard methods of intervention” that can be used if employees witness harassment or discrimination[1]:
  • A bystander can interrupt the harassment by engaging with the individual being harassed and distracting them from the harassing behavior;
  • A bystander who feels unsafe interrupting on their own can ask a third party to help intervene in the harassment;
  • A bystander can record or take notes on the harassment incident to benefit a future investigation;
  • A bystander might check in with the person who has been harassed after the incident, see how they are feeling and let them know the behavior was not ok; and
  • If a bystander feels safe, they can confront the harassers and name the behavior as inappropriate.
• Information concerning the state’s confidential hotline for complaints of workplace sexual harassment; and
• A “Conclusion” section stating that while the focus of the policy is on sexual harassment and gender discrimination, the New York State Human Rights Law protects against discrimination in all other protected classes.  The sexual harassment prevention model policy should be considered applicable to all protected classes.

As stated above, employers that do not adopt the model policy must ensure that their policy meets or exceeds the minimum standards set forth by the DOL. New York employers must also provide employees with a copy of the policy at the time of hiring and annually during sexual harassment training, which has long been required under New York law.

New York employers should review their current sexual harassment policies and training materials to ensure compliance with the new information contained in the new DOL model policy.

Please reach out to your Seyfarth attorney to assist with any questions or revisions to your policies.

 

[1] These are already likely being covered by your annual training, but now must be included in your policy.