By Melanie M. Ghaw, Esq. and Rachel H. Khedouri, Esq.
Since October 2018, all employers of New York employees have been required, on at least an annual basis, to establish and distribute a workplace sexual harassment prevention policy and provide training to employees that meet or exceed the minimum standards established by the State. In October 2019, then-Governor Cuomo signed broad anti-discrimination legislation requiring, among other things, that the New York State Department of Labor and Division of Human Rights review and revise the State’s Sexual Harassment Prevention Model Policy and Training materials in 2022 and every four years thereafter to account for changes in the workplace and state law. On April 11, 2023, the State released its updated model materials, available HERE.
Employers with New York employees should be aware of the following key changes:
1. Updates to the Sexual Harassment Prevention Model Policy
The October 2019 legislation lowered the legal threshold for establishing harassment under New York’s anti-discrimination laws. [See our eAlert summarizing the landmark 2019 legislation HERE.] Accordingly, the Model Policy now emphasizes that “sexual harassment does not need to be severe or pervasive to be illegal”, rather the behavior must just rise above petty slights or trivial inconveniences. Further, the Model Policy makes clear that, under New York law, whether harassing conduct meets this new threshold “is to be viewed from the standpoint of a reasonable victim of discrimination with the same protected characteristics.”
Other important changes include:
- Intent: The updated Model Policy includes an explanation that the “intent” of the harassment is not a defense and does not neutralize a harassment claim.
- Gender-based discrimination: The Model Policy now has added language that sexual harassment is a form of “gender-based” discrimination and includes definitions for cisgender, transgender, and non-binary persons.
- Remote Work: The new Model Policy is intended to encompass the modern – frequently remote – workplace with information and examples of how sexual harassment can occur “on virtual meeting platforms, in messaging apps, and after working hours between personal cell phones” and applies beyond the traditional office space to virtual workspaces.
- Bystander Intervention: The State added a new section to the Model Policy on “Bystander Intervention” that delineates “five standard methods” of intervention for those who witness harassment or discrimination, including, confronting the harasser, interrupting the harassment, asking a third party for help, recording the incident and checking in after the incident with the individual being harassed.
- Confidential Hotline: In the “Legal Protections and External Remedies” section of the Model Policy, the State has added reference to the statewide toll-free confidential hotline launched in July 2022 for individuals to connect with pro bono attorneys or submit complaints of workplace sexual harassment.
- Equal Employment Opportunity Commission (EEOC): The updates add procedural guidelines to report sexual harassment and file a complaint through the EEOC’s conciliation program.
- Expansion to other types of harassment: The updated Model Policy includes a new “Conclusion” emphasizing that, although the policy focuses on sexual harassment and discrimination, New York law now protects against (and the policy applies to) discrimination in all protected classes.
Finally, the State’s new Model Policy adds an updated non-exhaustive list of examples of sexual harassment, now including hostile actions taken based on an individual’s sex, sexual orientation, gender identity, or gender expression such as intentional misuse of an individual’s preferred pronouns and creating different expectations for individuals based on their perceived identities.
2. Updates to the Sexual Harassment Prevention Model Training Materials
Updates to the training materials, including a Model Training Script and Slide deck, new training video, and other online resources, largely mirror the updates to the Sexual Harassment Prevention Model Policy discussed above. The materials also include a content warning disclaimer to address concerns regarding potential employee reactions to sensitive training topics.
If you have any questions relating to these new materials, would like assistance reviewing your company’s sexual harassment prevention policies to ensure they meet or exceed the new standards, or would like to schedule customized compliant anti-harassment training for your workforce, please feel free to reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.