On April 12, 2023, the New York State Department of Labor (“NYDOL” or “Department”) published a new version of the state’s Model Sexual Harassment Prevention Policy (“Model Policy”).
Among other things, the Model Policy expands on gender definitions, obligations with respect to remote employees, and adds new examples of prohibited harassment. It also suggests the prevention and investigatory practices set forth in it are applicable to harassment based on all protected characteristics, not just sex.
New York’s Sexual Harassment Prevention Law and Resources
By way of background: effective October 9, 2018, all employers operating in New York State became obligated to adopt a written sexual harassment prevention policy. The requirement arose from former-Governor Cuomo’s approval of an amendment to the New York Labor Law aimed at combating sexual harassment in the workplace. Specifically, the law requires employers to either adopt the Department of Labor’s “model” policy, or, to implement their own policy that “equals or exceeds the minimum standards provided by [the NYDOL’s] model sexual harassment prevention policy.”
The law also directed NYDOL to review and update its Model Policy every four years. As part of this continued obligation, the Department issued a “proposed” updated Model Policy in January of this year. On April 12, the Department largely adopted the “proposed” version into the finalized and updated Model Sexual Harassment Policy. Governor Hochul released a statement announcing the updated policy.
The law also requires all employers to conduct annual sexual harassment prevention training. As with the Model Policy, the Department maintains a “Model Training” presentation employers may use to satisfy their training obligations. Employers are free, however, to adopt their own training, and, as with the Model Policy, an employer’s own training presentation must “equal or exceed the minimum standards provided by [the NYDOL’s] model training.” Accordingly, the Department of Labor updated its “Combating Sexual Harassment in the Workplace” resource page to include updated training materials, FAQs and model presentation slides.
Changes in Updated Model Policy
Notable revisions and additions include the following:
- Adds definitions for various gender identities (including cisgender, transgender and non-binary).
- Provides additional examples of sexual harassment, discrimination and retaliation and the ways in which sexual harassment can arise in the context of remote work, such as through various electronic interfaces.
- Reaffirms that harassment and discrimination on the basis of gender is not strictly limited to sexual contact, or sexually suggestive conduct, and that gender stereotyping can constitute harassment in the event employees are treated differently on the basis of their gender identity (cisgender, transgender and non-binary).
- Details the concept of “bystander intervention” and the various course(s) of action a bystander (i.e., co-worker) can take in the event they witness sexual harassment or discrimination in the workplace.
- Clarifies that “intent” shall not be regarded as a defense to harassment and/or discrimination.
- Adds examples of prohibited harassment, including examples of harassment targeting fully remote employees.
- Details the objective standard under which harassment and discrimination is evaluated; clarifies that claims will be viewed from the standpoint of a “reasonable victim” within the same protected class or with the same protected characteristics.
- Instructs that employees may directly call the New York State Division of Human Rights’ (“NYSDHR”) sexual harassment hotline.
Recommended Next Steps
Employers are required by law to give employees a copy of their sexual harassment prevention policy -- whether the Model Policy or their own policy – at every annual training, and, upon hire to new employees. With the Model Policy now in effect, employers should consider how to update their harassment prevention policies.
While many employers might be comfortable adopting the new Model Policy in its entirety, certain elements in the new policy make it advisable to evaluate the Model Policy more carefully. For example, the Model Policy’s framework on “bystander intervention” should be reviewed for consistency with employers’ other practices on resolving conflict, HR intervention, employee expectations for intervening in hostile conduct, and proper reporting channels.
The new Model Policy also provides an opportunity to review other anti-harassment and anti-discrimination policies. The final paragraph of the Department’s Model Policy states “the prevention policies outlined [in the Model Policy] should be considered applicable to all protected classes,” not just sex. The Model Policy therefore strongly suggests that its guidelines and procedures -- such as reporting obligations, detailed investigatory steps and standardized complaint form -- would be applicable to any harassment based on protected characteristics, such as race, age, national origin, disability, etc. Accordingly, employers should review and perhaps modify their other anti-harassment and anti-discrimination policies to ensure consistency.
Alternatively, employers may evaluate whether to adopt their own policy rather than use the Model Policy. But caution is urged if using an “employer-made” policy. As referenced above, the state Labor Law requires employers using their own policy to “equal or exceed the minimum standards provided by [the NYDOL’s] model sexual harassment prevention policy.” The statute is therefore somewhat at odds with NYDOL’s own guidance on the matter, which states that employers can craft their own sexual harassment policies so long as the policy includes eight specific standards – and not necessarily all of the standards set forth in the Model Policy.
In short: along with evaluating the Model Policy, employers should consider their options with their labor and employment counsel before implementing (perhaps inadvertently) wide-ranging policy changes.