The New York State Department of Labor (NYSDOL) has published updated versions of its sexual harassment prevention materials. Specifically, the NYSDOL updated the following: (1) the model sexual harassment policy; (2) the model sexual harassment prevention training slide deck; (3) the model sexual harassment prevention training script; and (4) the model sexual harassment training video. There were no changes to the model complaint form for reporting sexual harassment.

Model Sexual Harassment Policy

New York’s Sexual Harassment Prevention Law requires all employers in the state to either adopt the model policy published by the NYSDOL or establish a written policy on preventing sexual harassment that equals or exceeds the minimum standards provided in the model policy. Pursuant to that law, the NYSDOL is required to review its model policy every four years and issue a revised version.

While the updated policy is not significantly different from the previous version released in 2018, employers should review the updated policy and revise their current sexual harassment policy to meet the minimum standards. They also should ensure that copies of their updated policy and the complaint form are attached in their employee handbooks.

Some of the notable revisions to new model policy, published April 11, 2023, include the following:

• References to Other Types of Discrimination. The new model policy addresses discrimination based on other protected categories, such as race, religion and disability and states that such discrimination is prohibited. The policy also states that the reporting and investigation procedures detailed therein will apply to complaints about any type of discrimination in addition to sexual harassment and gender discrimination.
• Clarification of the Legal Standard. In 2019, the New York State Human Rights Law was amended to remove the “severe or pervasive” standard applied in determining whether unlawful sexual harassment occurred and increased the time to file a sexual harassment claim with the New York State Division of Human Rights (the Division). The new model policy now includes language that reflects these changes in the law. The policy informs employees that harassment does not need to be severe or pervasive to be unlawful and clarifies the new legal standard for sexual harassment, which is whether the conduct subjects an individual to inferior terms, conditions, or privileges of employment. Further, the section on reporting to the Division has been revised to state that complaints of sexual harassment must be filed with the Division within three years of the alleged conduct and also provides information regarding the Division’s sexual harassment hotline.
• Emphasis on Gender Diversity and Different Types of Sexual Harassment. A new paragraph has been added to the model policy, which discusses gender diversity and the gender spectrum. In this paragraph, the terms cisgender, non-binary and transgender are defined and the policy notes that “[u]nderstanding gender diversity is essential to recognizing sexual harassment.” Further, the NYSDOL has clarified, throughout the policy, that sexual harassment includes discrimination based on sex stereotypes, gender expression and perceived or actual gender identity.
• References to Remote and Virtual Interactions. In the new model policy, the NYSDOL has added language specifying how the policy will be distributed if an employer operates remotely or allows employees to work remotely. Additionally, the NYSDOL has added language and examples that address sexual harassment outside of traditional office environments and sexual harassment through electronic interactions, such as social media, messaging apps and virtual meetings.
• Expansion of Retaliation Section. The new model policy contains a more robust discussion of retaliation. The retaliation section in the policy now includes a definition of protected activity as well as specific examples of protected activity and retaliatory conduct.
• Discussion of Bystander Intervention. A new section on bystander intervention has been added to the model policy. This section focuses on encouraging employees who witness sexual harassment to make a report and provides guidance on how bystanders can intervene when harassment or discrimination is occurring.

Model Sexual Harassment Prevention Training

The model training materials on sexual harassment prevention have been updated to reflect the same changes that were made to the model policy, including discussing gender diversity, revising the applicable legal standards and discussing bystander intervention. When providing annual training to their employees, employers should use these revised materials.

The training script has been significantly updated and now provides language to correspond with each of the model slides. The training materials have also been updated to provide new case studies and the case studies are incorporated throughout the presentation, instead of at the end.

All employers are encouraged to comply with New York State’s requirement to provide interactive sexual harassment prevention training to all employees annually. Furthermore, as noted in the new script, at each annual training, employers must provide each employee with a copy of the employer’s sexual harassment policy and a copy of the information presented at the training.

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