As New York State employers are well aware, effective October 9, 2018, New York State Labor Law Section 201-g requires that employers adopt a sexual harassment policy and provide annual employee sexual harassment training. Employers may adopt the State’s Sexual Harassment Model Policy or establish their policy so long as it meets the State’s minimum standards for compliance, which can be found here. Alternatively, employers may utilize the State’s model sexual harassment training for annual compliance.
After publishing proposed revisions to the State’s policy and allowing time for public comment, on April 11, 2023, the New York State Department of Labor (NYSDOL) finalized and updated its Sexual Harassment Model Policy. The NYSDOL also released updated versions of the model complaint form, model training video, model training presentation slides, and model training script.
The updated Sexual Harassment Model Policy expands on existing definitions and provides new guidance regarding issues that have taken on greater importance since the pandemic, including addressing remote employees in two key ways: (1) an employer must, in the case of remote workers, not only email a copy of the sexual harassment policy, but also post the policy to the company’s shared network; and (2) the section defining sexual harassment specifies that remote employees can be harassed via electronic methods of communication.
The updated Sexual Harassment Model Policy also addresses gender identity and sexual harassment. The policy explains gender diversity and defines sexual harassment as including discrimination based on sex stereotypes, gender expression, and perceived identity. The newly adopted policy also offers additional examples of sexual harassment, including examples related to expectations based on perceived gender identities (i.e., “Dress codes that place more emphasis on women’s attire” and “Leaving parents/caregivers out of meetings”). Further, when outlining who can be the target of harassment, the policy notes, “Harassment does not have to be between members of the opposite sex or gender.”
Importantly, the NYSDOL’s newly adopted Sexual Harassment Model Policy clarifies that intent (or lack thereof) is not a defense. While the updated policy maintains the reasonable person standard for determining whether harassment has occurred, the policy, in eliminating intent as a defense, states, “The impact of the behavior on a person is what counts.” In sum, even if a harasser does not intend to harass, there may still be harassment and their lack of intent to harass is not a defense.
The updated Sexual Harassment Model Policy also:
- Expands on the introduction included in the 2018 model policy by outlining the purposes and goals of the sexual harassment policy.
- Reiterates and more specifically identifies additional individuals who are covered under the policy, including, but not limited to independent contractors, temporary workers, and non-employees providing services and/or goods to the employers, such as contractors or vendors.
- Specifies that sexual harassment in New York need not be “severe and pervasive” and encourages employees to report any suspected sexual harassment, even incidents perceived as minor.
- Dictates that investigations into complaints will be kept confidential “to the extent possible,” which differs from the 2018 policy mandating that all investigations be kept confidential.
- Notes that covered individuals can make complaints verbally or via email, not solely through completing the employer complaint form.
- Specifies that decisions affecting employment includes decisions regarding “what shifts and how many hours an employee might work, project assignments, as well as salary and promotion decisions.”
- Acknowledges that employees with membership in another protected class can face harassment that is still sexual harassment even when biases toward both protected classes motivate the harassment.
- Provides examples of retaliation.
- Reinforces the role of supervisors and managers in reporting sexual harassment.
- Adds a section regarding bystander intervention and reporting.
- Eliminates the 30-day investigation completion deadline outlined in the 2018 policy.
Bottom Line
New York Employers should work with counsel to ensure that their policies and training are updated. While employers should ensure their policies and training materials meet the minimum standards set forth by the NYSDOL, employers should be wary of blindly adopting the State’s model policies or training programs. For example, the NYSDOL advises that the model training video alone does not meet the minimum standards for sexual harassment prevention training as it is not interactive. The requirements outlined by the NYDOL are designed to provide minimum thresholds that should be customized based upon the needs of your company.
New York City employers should also be cognizant of additional employer requirements for policies and training outlined in the New York City Human Rights Law (NYCHRL). Notably, the NYCHRL applies to all employers, regardless of size.
