RPJ Partner Deena Merlen Discusses Proposed Sexual Harassment Prevention Policy

In New York State, employers are required to adopt a sexual harassment prevention policy, which includes a complaint form, and to provide the policy to each employee.

To aid employers in fulfilling this obligation, a few years ago the state published a model sexual harassment prevention policy that employers may use.  Employers are not obligated to use this model so long as the alternative policy that they adopt meets or exceeds the following minimum standards:

    1. prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division on Human Rights;
    2. provide examples of prohibited conduct that would constitute unlawful sexual harassment;
    3. include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
    4.  include a complaint form;
    5.  include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
    6.  inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
    7. clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
    8. clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

The New York State law that requires employers to provide written sexual harassment prevention policies (along with annual sexual harassment training) to their employees also provides that the model policy is to be reviewed and revised every four years, given legal developments and changes in the workplace over time.

Accordingly, New York State recently proposed an updated model sexual harassment prevention policy, which has been made available for public review and feedback during a comment period that commenced in January 2023 and will end on February 11, 2023.  The proposed model, which can be viewed here, differs in a number of key respects from the current model policy.  Several key changes are discussed below.

1) Gender-based discrimination

Both the current model policy and the proposed one explain that sexual harassment is a form of gender-based discrimination that is unlawful under federal, state, and (where applicable) local law, and that this includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity, and the status of being transgender.

However, the proposed model policy goes on to provide a far more in-depth discussion of gender-based discrimination, as follows:

Sexual harassment is not limited to sexual contact, touching, or expressions of a sexually suggestive nature. Sexual harassment includes all forms of gender discrimination including gender role stereotyping and treating employees differently because of their gender. Understanding gender diversity is essential to recognizing sexual harassment because discrimination based on sex stereotypes, gender expression and perceived identity are all forms of sexual harassment. The gender spectrum is nuanced, but the three most common ways people identify are cisgender, transgender, and non-binary. A cisgender person is someone whose gender aligns with the sex they were assigned at birth. Generally, this gender will align with the binary of male or female. A transgender person is someone whose gender is different than the sex they were assigned at birth. A non-binary person does not identify exclusively as a man or a woman. They might identify as both, somewhere in between, or completely outside the gender binary. Some may identify as transgender, but not all do. Respecting an individual’s gender identity is a necessary first step in establishing a safe workplace.

While public comments are still being gathered and it remains to be seen whether the above passage will ultimately be included in the final version of the model policy, the focus on gender diversity is a noteworthy potential addition.

2) Bystander intervention

The proposed model policy also includes a discussion concerning bystander intervention, a topic that has been a required component of mandatory employee sexual harassment prevention trainings under New York City law for several years.  The proposed model policy sets forth several ways that employees may intervene if they witness harassment or discrimination.  (For more information on bystander intervention, we refer you to this resource by RPJ Partner Ethan Krasnoo:  The Power of Bystander Intervention | RPJ Law.)

3) Complaint hotline

The proposed model policy also provides the NYS Division of Human Rights sexual harassment hotline that was implemented in New York State in 2022 and which New York State employers are required to provide to employees with their other materials on sexual harassment prevention:  1-800-HARASS-3.  Callers may use this hotline to get more information about filing a sexual harassment complaint and referrals to volunteer attorneys experienced in sexual harassment matters who can provide limited free assistance and counsel over the phone.

4) Remote workers

In light of the growth of the remote workforce that developed during the pandemic, the proposed model policy – not surprisingly – also emphasizes that sexual harassment can occur in the remote workplace as well as the physical workplace.

5) Discrimination beyond sexual harassment

Additionally, a point that only is addressed in a footnote in the current policy has been elevated to the concluding paragraph in the main text of the proposed new model and expanded.  The concluding paragraph emphasizes that while the focus of the policy is on sexual harassment and gender discrimination, the New York State Human Rights law protects against discrimination in several protected classes including sex, sexual orientation, gender identity or expression, age, race, creed, color, national origin, military status, disability, pre-disposing genetic characteristics, familial status, marital status, criminal history, or domestic violence survivor status – and that the prevention policies outlined in the document should be considered applicable to all protected classes.

Comments on Proposed Model Policy

Those interested in providing feedback on the proposed new model policy before a final version is established by New York State may provide comments through February 11, 2023 here:    https://www.ny.gov/content/sexual-harassment-prevention-policies

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This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Deena R. Merlen who counsels clients in areas of intellectual property, employment and labor law, media and entertainment, general business law, commercial transactions and dispute resolution. Ms. Merlen is admitted to practice law in Connecticut and New York.