NYS Department of Labor Publishes Updated Model Sexual Harassment Policy And Revised Model Training
Since October 2018, all employers with one employee in New York have been required to implement a sexual harassment policy and ensure employees go through an annual training. Both the policy and the training must meet certain minimum standards, and the state has developed a model policy and model training that employers may, but are not required to, use to meet their obligations under the law. We previously reported that the New York State Department of Labor (“NY DOL”) proposed revisions to the state’s model sexual harassment policy. On April 11, 2023, New York Governor Kathy Hochul announced the publication of the final updated versions of the model policy and model training materials.
The revisions to the model policy are significant and focus largely on incorporating gender identity and communicating that this policy is applicable to protected categories beyond gender. Below is a list of significant changes and additions to the model policy of which NY employers should be aware.
Defining gender discrimination to include gender identity and expression with definitions and examples.
Including an explicit statement that in New York State, sexual harassment does not need to be severe or pervasive to be illegal.
Focusing on impact, not intent, and noting that intent will not neutralize a harassment claim or be a defense.
Updating the non-exhaustive list of examples of sexual harassment and adding examples of intersectional discrimination and retaliation. More specifically, the examples of sexual harassment now include timely topics such as intentionally misusing an individual’s preferred pronouns, creating different expectations for individuals based on perceived identities, making remarks regarding an employee’s gender expression (e.g., making remarks about an employee wearing a garment typically associated with a different gender identity), and asking employees to take on traditionally gendered roles (e.g., asking a woman to serve refreshments at a meeting when it is not a part of her job duties). The examples of intersectional discrimination clarify that a particular action can implicate more than one protected characteristic such as when different demands are placed on black female employees as compared to white female employees. And the examples of retaliation make it clear that retaliation can include actions beyond demotion or termination such as publicly releasing personnel files, labelling an employee as difficult and excluding them from projects, or moving an employee’s desk to a less desirable location etc.
Strongly encouraging employers to affirmatively post the sexual harassment policy in the workplace.
Explicitly recognizing that harassing behavior can happen in the remote workplace.
Enhancing the obligations of managers and supervisors to proactively prevent sexual harassment and discrimination and seemingly imposing an obligation on managers to accommodate the needs of individuals who have experienced harassment during and after any investigation.
Adding a new bystander intervention section which identifies five ways an employee can support a colleague when harassment or discrimination is observed.
Cautioning that individuals who receive complaints or conduct investigations must do so with sensitivity.
Explicitly referencing the new NYS Division of Human Rights sexual harassment hotline in the Legal Protections and External Remedies Section.
Clarifying that the model policy should be considered applicable to all protected classes under New York State law.
In addition, the NY DOL updated their Combatting Sexual Harassment resource page to include new toolkits for employees and employers, updated FAQs, an updated sexual harassment prevention training slide deck and accompanying script, and a new sexual harassment prevention training video. The updated training materials mirror many of the changes in the model policy and include new case scenarios addressing subjects such as the remote work environment and harassment based on gender identity. Additionally, the updated training script provides a content warning concerning the sensitivity of the material covered by the training which employers can read to their audience before the training begins.
Employer Takeaways
Employers should review their sexual harassment and discrimination trainings and policies to determine what changes should be made. If you have any questions about the new model policy, any of the resources provided on the NY DOL’s Combatting Sexual Harassment Resource Page or any of your current materials related to the model policy or resources provided by the NY DOL please contact Caroline F. Secola at csecola@fglawllc.com, or any attorney at the firm.
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