On April 11, 2023, New York State released a revised sexual harassment prevention model policy and updated model training materials. The new model policy includes an expanded definition of sexual harassment, a new section on bystander intervention and updated information on how employees may report to outside agencies.
The New York State Department of Labor (DOL), in consultation with the New York State Division of Human Rights (DHR), developed the updated model policy pursuant to its obligation to review the effectiveness of the State’s sexual harassment prevention program every four years. See NYLL § 201-g(4). The new model policy replaces the model policy released by the DOL in 2018 and reflects the significant changes to New York workplace harassment law made in 2019.
All New York employers are required to either adopt the model policy or implement written sexual harassment prevention policies that meet or exceed the standards set out in the state’s Labor Law. Id. § 201-g(1). In addition, employers are required to provide employees with annual sexual harassment prevention training. Clear Law Institute provides an online training program that meets the minimum standards under the law. Id. § 201-g(2).
The model policy includes new language expanding upon or refining several points. The most significant are:
The new policy makes clear that the harassing conduct need not be of a sexual nature to be sexual harassment; harassment on the basis of gender, gender identity or expression, or sexual orientation is itself sexual harassment. The policy also defines the terms “cisgender,” “transgender” and “non-binary.”
Until 2019, under the New York State Human Rights Law (NYSHRL), a plaintiff had to show that harassment was “severe and pervasive” to have a claim. The 2019 amendments to the NYSHRL eliminated the severe and pervasive standard. Now, the statute provides that a plaintiff must show only that she was subjected to “inferior terms and conditions and privileges of employment” on the basis of membership in the protected class. This standard more closely mirrors that under the New York City Human Rights Law, where a plaintiff must show that she was “treated less well” than employees outside the class.
The model policy provides that employees witnessing harassment as bystanders are encouraged to report it. It also sets out 5 steps that bystanders can take to intervene and stop or mitigate the effects of harassment (interrupt the harassment, seek help from a third party, make a record of the conduct, check in on the target, and confront the harasser). (Clear Law Institute offers Bystander Intervention training for employees.)
The model policy adds, as an example of sexual harassment, sex stereotyping, such as making remarks about an employee’s gender expression or asking employees to take on traditionally gendered roles like serving refreshments at a meeting.
The other examples in the model policy are expanded and updated. For example, the policy references harassment of service industry employees by customers and displaying sexual imagery in the background during a remote meeting.
The model policy states that harassment on the basis of protected characteristics unrelated to gender is unlawful and that the methods of reporting and investigating such harassment are the same as for sexual harassment.
The retaliation section of the model policy now lists examples of retaliation and includes, for example, conduct outside the workplace such as disparagement on social media. The new policy also explicitly states that employees are protected from retaliation even if the conduct is not ultimately deemed unlawful, provided the employee had a good faith belief that it was.
The new policy states that supervisors must not wait for a complaint before reporting sexual harassment and warns that a supervisor who knows of harassment and fails to report it may be disciplined.
In addition, the new model policy states that supervisors should be mindful that targets of sexual harassment may feel intimidated, uncomfortable or re-traumatized during the reporting and investigation process. The policy states that supervisors must offer accommodations to victims of harassment.
The model policy provides that an investigation will be started and completed as soon as possible, whereas the 2018 model policy stated only that the employer would do a timely investigation. The new policy also states that the employer will record the basis of the determination made after any investigation and will keep investigation records in a “secure and confidential” location.
The new policy also expressly states that employees are not required to submit complaints via the policy’s complaint form and may report orally or in some other written form such as via email.
The model policy states that the statute of limitations for filing a DHR complaint is 3 years (this had formerly been 1 year), provides a link to the agency’s online complaint portal, and sets out the state’s new sexual harassment hotline where employees can report claims and get limited legal advice from volunteer attorneys.
Clear Law’s online sexual harassment prevention training complies with state and local harassment training laws in all 50 states, including New York sexual harassment training requirements. As required by some state and local laws, the training also addresses topics such as workplace civility, bullying, and bystander intervention.