Labor & Employment Law Alert: New York State Issues Revised Model Sexual Harassment Prevention Policy

New York State issued a much-anticipated update to its Model Sexual Harassment Prevention Policy. The new Model Sexual Harassment Prevention Policy is available here.

As employers across New York State will remember, New York State amended the New York State Labor Law in 2018 to require all employers to adopt a sexual harassment prevention policy. Those amendments to the Labor Law included a requirement that the New York State Department of Labor and New York State Division of Human Rights review the Model Sexual Harassment Prevention Policy issued by New York State at least every four years. While there are many important changes to the Model Sexual Harassment Prevention Policy, key changes are described below:

  • The model policy places a greater emphasis on harassment and discrimination based on an individual identifying as transgender. It includes a new section regarding respect of gender identity in the workplace and general explanations of the terms transgender, non-binary and cis-gender.
  • The updated policy includes an expanded definition of harassment. Although the revised definition is consistent with New York State law, the policy makes clear that harassment does not have to be considered “severe or pervasive” (as is the case under federal law) to constitute unlawful harassment under New York State law.
  • There are additional examples of unlawful harassment and retaliation included in the model policy. For instance, the revised policy provides that “[c]reating different expectations for individuals based on their perceived identities”, such as dress code policies that primarily focus on women’s clothing or meetings that exclude parents or caregivers, may give rise to a harassment claim. The policy also addresses scenarios that could be viewed as retaliatory, such as the public release of personnel files, the assignment of less favorable shifts and “providing an unwarranted negative reference.”
  • Sexual harassment policies must now address “Bystander Intervention.” The revised model policy includes a new section concerning different ways employees can assist another employee who is being harassed.
  • The updated policy makes clear that conduct in the remote workplace can give rise to harassment or discrimination complaints. The policy provides that comments communicated in messaging apps when employees are working remotely can create a hostile work environment. Similarly, the policy states that sexual displays or publications, including “materials visible in the background of one’s home during a virtual meeting” can serve as the basis for a sexual harassment complaint.
  • The model policy now includes a reference to the intent of harassing behavior. It explicitly states that even if an alleged harasser claims their conduct was “a joke” that does not serve as a defense to a harassment claim.
  • Sexual harassment policies must now include a reference to the sexual harassment hotline made available by New York State. The hotline is available every weekday and is a confidential way for individuals with potential workplace sexual harassment to receive free advice from lawyers.
  • Employers should be aware of new language regarding the proper conduct of harassment or discrimination investigations. The model policy includes a reference that employers should be mindful that a sexual harassment investigation may retraumatize an employee. Further, the policy states “[t]hose receiving claims and leading investigations will handle complaints and questions with sensitivity toward those participating.”

In addition to the changes to the Model Sexual Harassment Prevention Policy, New York State updated other materials on its resource page concerning the prevention of sexual harassment in the workplace. For example, the State released a new model sexual harassment training video and now provides a sexual harassment prevention training assessment form. Employers can provide employees with the assessment form to complete after they watch the training video. The State also updated the “Frequently Asked Questions” section of its workplace sexual harassment prevention resource page.

While many employers may have reviewed and updated their employment policies at the end of the last calendar year or earlier this year, all employers will need to review and update their existing sexual harassment prevention policies to ensure compliance with the new changes. Employers have the option to either adopt the model policy issued by New York State or develop their own policy that meets or exceeds the standards established by the State. Employers should also review their sexual harassment prevention training programs.

This communication is for informational purposes and is not intended as legal advice.