New York State Sexual Harassment Prevention Legal UpdatesApril 18, 2023
New York State has recently updated its sexual harassment prevention model policy and training requirements. The notable changes that employers should be aware of are summarized below, along with a recently enacted requirement to provide electronic copies of all legally mandated notices. Employers should review and update their sexual harassment policies as soon as practicable and without delay, while at the same time review and, if outside of New York City (as explained below), begin updating sexual harassment prevention training materials so that they are in compliance with these recent updates for all upcoming and future trainings.
Just last week, New York State finalized updates to its model sexual harassment prevention policy for employers. The most substantive updates include:
- More clearly outlining the purposes and goals of the model policy and clarifying that the policy applies to all forms of discrimination and harassment against protected classes under federal, state, and local laws;
- Noting that harassment does not need to be “severe or pervasive” to be illegal;
- Adding more examples of sexual harassment, discrimination, and retaliation, including circumstances in which sexual harassment can occur while working remotely;
- Adding a new section on bystander intervention and providing tools and methods that can be used when an employee witnesses discrimination or harassment;
- Adding new language regarding gender diversity and gender-based harassment and discrimination, which can include gender stereotyping and treating employees differently because they identify as cisgender, transgender, or nonbinary;
- Providing emphasis and guidance on supervisors’ and managers’ responsibility to report harassment and discrimination;
- Explaining that intent is not a defense to harassment and discrimination, and that “the impact of the behavior on a person is what counts;"
- Clarifying that whether conduct or behavior is unlawful is based on an objective standard and “viewed from the standpoint of a reasonable victim of discrimination with the same protected characteristics;” and
- Adding information regarding the New York State Division of Human Rights’ sexual harassment hotline (which has been in place since last year).
We recommend that all New York State employers review and conform their current policy to ensure it is in compliance with the updated model policy. Employers can also choose to download and distribute the new model policy in the form provided by NYS (available here), the new model notice (available here), which also should be physically posted in the workplace), and the new model complaint form (available here).
In line with the new model policy, New York State has also updated its sexual harassment prevention training materials. Each employee in New York must complete this training on an annual basis.
While there previously had been more prominent distinctions between New York State and New York City training requirements, the State’s most recent updates to the policy and training models now more significantly align with the City requirements (though some aspects of training for City-based employees remain unique and nuanced). Thus, any employer using the New York City-provided guidelines and/or materials will continue to meet the New York State minimum training requirements. However, employers with employees wholly outside of New York City using prior New York State-provided guidelines and/or materials should update their training materials in order to comply with the State’s new guidelines and should add to their training some of the new concepts from the State’s new model training. These include, for example:
- Providing a content warning and a disclaimer that, especially in group settings, accommodations will be granted to those needing a break for their mental health or if they prefer to complete the training alone at a later time;
- Addressing gender identity and sex stereotyping with more specificity than in the past;
- Discussing the current “petty slights or trivial inconveniences” standard in contrast to prior “severe or pervasive” standards, along with a discussion of the irrelevance of a potential bad actor’s “intent;” and
- Reviewing bystander intervention methods, which previously had only been required in City-based trainings.
Generally, we recommend that all employers periodically review their training materials for content and compliance.
For reference, the New York City training materials are available here. The updated New York State materials include:
- An updated model training slide deck (available here);
- An accompanying script (available here); and
- A YouTube training video (available here).
Notably, while the YouTube video alone meets most New York State minimum training requirements, it is NOT considered interactive. Thus, in order to satisfy this final requirement, employers must also: (i) ask questions of employees as part of the program; (ii) accommodate questions asked by employees, with answers provided in a timely manner; or (iii) require feedback from employees about the training and the materials presented. This can be accomplished by using the fillable PDF answer sheet provided by the State (available here), and having employees return their answer sheets to Human Resources or their supervisors.
Employers are not obligated to use the New York State provided materials and may continue to conduct their own internal training with a tailored in-person or webinar training, or through an online vendor. Such training will be compliant with New York State requirements provided that the training is interactive, is completed annually, and includes the following minimum components:
- An explanation of sexual harassment consistent with guidance issued by the New York State Department of Labor in consultation with the New York State Division of Human Rights;
- Examples of unlawful sexual harassment;
- Information regarding federal and state protections concerning sexual harassment and legal remedies available to targets of sexual harassment;
- Information concerning employees’ rights of redress and all available forums for adjudicating complaints;
- Information addressing conduct by supervisors and additional responsibilities for supervisors; and
- Employers must also provide employees a notice that contains:
- the employer’s sexual harassment policy; and
- a copy of the information presented at the sexual harassment prevention training.
Reflecting the “new normal” of more common and frequent remote work arrangements, employers in New York State must now (i) make notices and posters available electronically through the employer’s website or by email; and (ii) notify employees of such electronic availability.
This requirement applies to all such notices or posters that are legally required to be distributed and/or posted by federal and/or state law. Notably, this requirement is a supplement to, and not a replacement of, distribution and/or posting requirements in the physical workplace, which remain in place.
Though not exhaustive, most federal notice and posting requirements can be found here, and most New York State notice and posting requirements can be found here. Certain industries may require additional industry-specific postings.
For more information on this issue or other employment matters, please contact:
Carol M. Goodman at +1 212 592 1465 or [email protected]
Pamela A. Frederick at +1 212 592 1591 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]
Basil C. Sitaras at +1 212 592 1572 or [email protected]
© 2023 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.