New York State Issues Revised Model Sexual Harassment Policy and Training Materials

The New York State Department of Labor has issued a revised Model Sexual Harassment Policy and updated Sexual Harassment training materials, which comes after the state announced earlier this year they would be revising the model policy for employer use. This model policy has been available since 2018, when the New York State Labor Law was amended to require all employers in New York State to adopt a written sexual harassment policy and provide annual training to their employees.

Employers are not required to use the model policy to comply with this law and can instead create their own policy as long as it meets or exceeds the minimum standards found in New York Labor Law § 201-g. These minimum standards are also published in materials available on the New York State Department of Labor webpage and have not changed since they were introduced in 2018.

What should you do?

If your business already uses the model policy, you should replace it with the revised version, which can be found here, on the New York State Department of Labor website. You should notify your employees of the updated policy and provide a copy to each employee.

If your business created its own version of the required sexual harassment policy, you should still review the updates to the model policy (more detail can be found below). While the statutory minimum standards for the policy have not changed, there is new language in the revised model policy, which states that at a minimum, no section in the model policy should be omitted. You should compare your current policy with the revised model policy and consider whether your policy may need to be updated.

Finally, if you conduct your own internal sexual harassment training rather than using an outside trainer, you should review the newly-updated training materials, which contain case studies and information that may be helpful in preparing a training for your workforce. If you are interested in using an outside trainer, HSE offers an on-demand training program, which you can use to meet New York State’s annual sexual harassment training requirement.

How is the new model policy different?

While some of the changes to the revised model policy can be characterized as restating or elaborating on the original content, there are some new substantive changes for employers to note. These changes include:

  • Multiple reminders that both harassment and discrimination are prohibited, not only on the basis of sex and gender, but on the basis of any protected characteristic under New York State law, and that the methods for reporting and investigating discrimination and harassment based on any protected characteristic are the same in all cases.
  • More expansive definitions and explanations for sex/gender terminology, including cisgender, transgender, and nonbinary, and a reminder that sex/gender as a protected characteristic includes sexual orientation, gender identity, gender expression (perceived or actual), and sexual orientation. The revised policy also discusses sex stereotyping as a form of gender-based harassment.
  • A discussion of evaluating whether conduct is unlawful, including that impact, rather than intent, is key to determining whether behavior is unlawful, and that the analysis is done through the lens of a “reasonable victim of discrimination with the same protected characteristics.”
  • Emphasis on the many internal and external methods and avenues for making complaints, which include but are not limited to, emailed or verbal complaints, and, externally, the recently-created Division of Human Rights sexual harassment hotline number 1(800) HARASS3.
  • More detail regarding the responsibilities of managers and supervisors, including that managers and supervisors should not wait to receive a complaint before acting on suspected sexual harassment. Additionally, while managers and supervisors are still required to report any complaint or information about suspected sexual harassment, they, and their employers, must be aware of and accommodate the needs of individuals who have experienced harassment to ensure the workplace is safe, supportive, and free from retaliation during and after any investigation.
  • The addition of information on bystander intervention, including methods that individuals who witnesses harassment and discrimination can use to assist potential victims.
  • New examples of sexual harassment (e.g., the intentional misuse of an individual’s preferred pronouns) and retaliation (e.g., publicly releasing personnel files, refusing to provide a reference, labelling an employee “difficult”), and a comment that an individual’s personal history may make them more sensitive to certain behaviors or actions.
  • An acknowledgement that sexual harassment can occur when individuals work remotely, and harassing remarks or images shared over virtual platforms, in messaging apps, and between personal cell phones during non-working hours are not acceptable. If an office is fully remote, the sexual harassment policy must be shared via email and on a business’s shared network.

Harter Secrest & Emery’s Labor and Employment attorneys are here to answer any questions you may have regarding the revised sexual harassment materials.

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