New York State Releases Updated Sexual Harassment Prevention Policy
04/13/2023On April 11, 2023, Governor Kathy Hochul announced the New York State Department of Labor’s (“DOL”) release of an updated Sexual Harassment Model Policy (the “Model Policy”). The DOL has issued revised model forms which address, among other things, gender discrimination, a broader definition of individuals covered by the Model Policy, remote workers, bystander intervention methods and references a new hotline for information about filing a sexual harassment complaint. The DOL also released a new interactive training video and online resources to help employers and employees understand and comply with the new Model Policy and training requirements.
Key Model Policy Revisions
The updated Model Policy contains certain key revisions including:
- Additional language emphasizing that sexual harassment as a form of workplace discrimination can be affected by other identities beyond gender and explaining gender diversity (including definitions of cisgender, transgender and non-binary persons).
- A broad definition of who is covered by the Model Policy, including employees and individuals who are not directly employed by a company such as independent contractors, gig workers, temporary workers, and persons providing services through a contract such as equipment repair and cleaning services.
- Additional language clarifying that although employees must have access to a complaint form, the use of the form is not required if an employee would rather make a complaint verbally or by email. Employees are also encouraged, but not required to report harassment to their manager or employer and may instead report harassment directly to a government agency such as the New York States Division of Human Rights and/or the United States Equal Employment Opportunity Commission.
- Clarifying that sexual harassment includes more than sexually suggestive conduct, and includes all forms of gender discrimination, gender role stereotyping or treating employees differently because of their gender.
- An explanation that sexual harassment can be impacted by biases and identities beyond an individual’s gender, including placing different expectations on black women compared to white women and understanding how vulnerabilities such as immigration status and past experiences as a survivor of domestic or sexual violence could lead to different perceptions of workplace harassment.
- Additional language that sexual harassment can occur when employees work remotely, through virtual meeting platforms, in messaging apps, on personal cell phones, etc.
- A new section providing examples of what constitutes unlawful retaliation (including retaliation that is not job related).
- A provision under Supervisory Responsibilities, explaining that supervisors and managers should be mindful of the impact that harassment and a harassment investigation could have on potential victims and stating that steps should be taken to accommodate the needs of these individuals and ensure a safe and supportive workplace environment free from retaliation.
- Adding a new section on bystander intervention, including five standard methods of intervention that can be used by an employee as guidance on how to react to harassment or discrimination in the workplace.
What Employers Need to Know
Employers should have written harassment and discrimination policies that are consistent with applicable guidelines and laws and consult with counsel to ensure compliance. Employers should also be aware of annual sexual harassment training requirements, notice and posting requirements and remain informed about changes in this area that may impact your business. This can be an overwhelming process. If you have questions concerning how these changes impact your business, please contact Felicia Ennis. As always, you may also contact your regular Warshaw Burstein attorney.
Felicia S. Ennis fennis@wbny.com O: (212) 984-7753
This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, legal or tax advice. If you have any specific legal or tax questions regarding this content or related issues, then you should consult with your professional legal or tax advisor.
