Sexual Harassment Prevention Policy Updates
In April 2023, the New York State Department of Labor updated the State’s sexual harassment prevention policy and training materials. Employers are required to adopt the sexual harassment prevention model policy that was developed by the Department of Labor and Division of Human Rights, or establish a policy that meets or exceeds the minimum standards. Labor Law § 201-g(1)(b). Employers are required to provide employees with a written copy of the policy and training materials, and are required to provide annual sexual harassment prevention training. The law applies to all public and private employers in New York.
New Legal Standard
The model policy sets a lower standard for workplace sexual harassment. Sexual harassment includes any harassing behavior that is more than “petty slights or trivial inconveniences.” Executive Law § 296(1)(h). Unlike federal law, the behavior is not required to be severe or pervasive to be illegal. Petty or trivial conduct is determined from the standpoint of a “reasonable victim of discrimination with the same protected characteristic[s].” Executive Law § 296(1)(h). Lack of intent is not a defense for workplace sexual harassment.
The sexual harassment prevention model policy defines sexual harassment as “a form of gender-based discrimination that is unlawful under federal, state, and (where applicable) local law.” The model policy provides a non-exhaustive list of examples of prohibited conduct. The list includes physical acts of a sexual nature, unwanted sexual comments, sexually oriented gestures or remarks which create a hostile work environment (in-person or virtually), sex stereotyping, sexual or discriminatory displays or publications in the workplace, and hostile actions taken against an individual because of the individual’s sex, sexual orientation, gender identity, or gender expression.
Sexual harassment is not only prohibited in the physical workplace. The model policy also prohibits sexual harassment that occurs when employees are working remotely. The non-exhaustive list of examples of prohibited conduct includes harassment that may occur in virtual meetings, over virtual platforms, on social media, in messaging applications, and in cell phone communication. Similarly, the model policy expanded the examples of prohibited retaliation to include those that disparaged an individual on social media. Additional examples of prohibited retaliation include public release of personnel files, labeling an employee as “difficult,” refusing to provide a reference, or undermining an individual’s immigration status.
The model policy provides a non-exhaustive list of methods for bystander intervention. Depending on the circumstances, someone who witnesses harassment or discrimination in the workplace may use these methods as a guide for how to react. The bystander intervention methods include interrupting the harassment by communicating with the individual who is being harassed, asking a third party to help intervene in the harassment, making a record of the harassment incident, checking in with the person who was harassed after the incident, and confronting the harasser in a non-physical manner. Supervisors or managers who witness harassment are required to report it, but should be mindful of the harassment and subsequent investigation’s impact on the victim. Other employees who witness harassment are encouraged to report it. The model policy also includes information about the State’s confidential, sexual harassment hotline.
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