The State of New York is looking to strengthen its existing laws concerning the prevention of sexual harassment in the workplace. To do so, the Department of Labor (DOL) is calling on New Yorkers to submit their feedback, which may be provided online before September 20, 2022.
Currently, employers in New York are required to adopt a sexual harassment prevention policy that complies with the requirements of Labor Law § 201-g, and also to provide annual training in this regard. The DOL has created a model policy and training, which is available to employers. If they choose to create their own policy and/or training, they must meet or exceed the law’s minimum standards.
The sexual harassment prevention policy must be distributed to the employee in English and in the employee’s primary language. The policy must, at a minimum:
- Prohibit sexual harassment consistent with guidance issued by the DOL in consultation with the Division of Human Rights;
- Include examples of prohibited conduct;
- Provide information concerning the federal and state legislation regarding sexual harassment, available remedies and a reminder that there may also be local laws that apply;
- Include a complaint form and a procedure for the timely and confidential investigation of complaints;
- Inform employees of their rights and available forums for adjudicating a sexual harassment complaint;
- State that sexual harassment is a form of misconduct and sanctions will be enforced against employees who engage in this behavior, as well as supervisors or managers who tolerate such behavior; and,
- State that there will be no retaliation against employees who complain of sexual harassment.
The move toward stronger sexual harassment prevention norms is in line with the provisions of the Labor Law, which state that beginning in 2022, and every four years thereafter, the DOL (in consultation with the Division of Human Rights) shall evaluate the current model sexual harassment prevention guidance document and sexual harassment prevention policy, and update them as needed.
The review of current sexual harassment prevention norms also falls in a broader context. Employers can be held liable for sexual harassment in the workplace under the New York State Human Rights Law. Changes made to that law in 2019 have made it easier for employees to hold employers accountable for sexual harassment in the workplace. Sexual harassment can now be established even if it is not “severe and pervasive” so long as it rises above the level of “what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences”. Further, the fact that an employee has not complained about sexual harassment is not a defense to liability. Moreover, the statute of limitations for filing a sexual harassment complaint has been extended from one year to three years.
The details of changes that may flow from the review currently under way are not yet known, but it is clear that the intent of the DOL is to further strengthen sexual harassment policies, which will likely create a more onerous burden for employers and result in increased risk of liability. We will continue to monitor and report the developments in this area.
Thanks to Alexandra Toutant for help on an earlier draft of this article