On April 11, 2023, the New York State Department of Labor released updated versions of its sexual harassment model policy and training materials.
New York employers have been required since 2018 to adopt a written sexual harassment policy that meets certain minimum standards, and to implement annual anti-harassment training for employees. New York employers must also provide employees at the time of hiring and annually during training with a copy of the policy. To help employers comply, the New York Department of Labor issued model forms, including a model policy, and a model training video. The changes to the model policy and training video are significant. Here's what all New York employers need to know:
- In explaining that sexual harassment is a form of "gender-based" discrimination, the new policy now provides a detailed explanation of gender diversity including definitions of cisgender, transgender and non-binary persons.
- In describing the legal standard in New York, the new policy adds that sexual harassment does not need to be severe or pervasive to be illegal; that intent is irrelevant under the law; and that whether conduct is harassing will be considered from the perspective of a "reasonable victim of discrimination with the same protected characteristics."
- The new policy provides an updated, non-exhaustive list ofexamples of sexual harassment and retaliation, including repeated requests for dates and gift giving, asking employees to take on traditionally gendered roles, or having different expectations of employees with children.
- The new policy makes clear that harassing behavior can happen in the remote workplace, such as in virtual meetings or after hours on personal cell phones.
- The new policy includes a provision in the section on "Supervisory Responsibilities" and the section on "Complaints and Investigations" telling supervisors and managers to be mindful of the impact investigations into sexual harassment can have on victims, and to handle such matters with sensitivity.
- The new policy adds a brand new section on bystander intervention, which explains the "five standard methods of intervention" that can be used if employees witness harassment or discrimination.
- The new policy includes the state's confidential hotline for complaints of workplace sexual harassment in the section on "Legal Protections and External Remedies".
- The new policy adds 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 other protected classes including sex, sexual orientation, gender identity or expression, age, race, creed, color, national origin, military status, disability, pre-disposing genetic characteristics, familial status, marital status, criminal history, or domestic violence survivor status, and that the policy "should be considered applicable to all protected classes."
- The New York Department of Labor has also released a new training video, which can be found here. The video meets all New York State training requirements except for being interactive; however, the New York Department of Labor provides employers with a method for meeting this requirement.
Employers should carefully review the latest materials and update their policies and training materials. As a best practice, employers should also customize policies and training to their specific organization.
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