The French employment Code defines sexual harassment as “repeated sexual comments or conduct that either violate the [employee’s] dignity because of their degrading or humiliating nature or create an intimidating, hostile or offensive situation against the employee“.
The French employment Code also assimilates to sexual harassment “any form of serious pressure, even
Recently, New York State and New York City have continued the trend of enacting employee-friendly legislation and issuing broad enforcement guidance under their respective employment laws and regulations. New York State and New York City employers should be aware of the following recent developments from 2018 and early 2019, and should take action to review and update their practices and policies for compliance.
Federal and New York State laws already require employers to make reasonable efforts to provide a room other than a bathroom where a nursing employee can express breast milk in privacy. New York City recently passed two laws expanding those rights. Effective March 18, 2019, New York City employers will be subject to additional specific requirements regarding the lactation room that must be made available to nursing mothers. New York State law already requires that the lactation room be private, well-lit, and contain, at a minimum, a chair and small table, desk, counter, or other flat surface. The New York City law will require additional amenities in the lactation room, including an electrical outlet and nearby access to running water, and that the employer provide a refrigerator suitable for breast milk storage in reasonable proximity to the employee’s work area. Also effective March 18, 2019, New York City employers will be required to implement a written lactation room policy that meets specified requirements, and provide a copy of the policy to all employees upon hiring. The policy must include a statement that employees have the right to request a lactation room, and identify a process by which employees may make such request (which process must meet certain minimum requirements).
Effective October 15, 2018, New York City amended its Human Rights Law to require covered employers to engage in a “cooperative dialogue” with individuals who may be entitled to a reasonable accommodation related to religious beliefs, disability, pregnancy, childbirth or a related medical condition, or because the employee was a victim of domestic violence, sex offenses, or stalking. The law requires that covered employers follow certain procedures when they receive a request for an accommodation, or when they have notice that an individual may need an accommodation, including the following:
The recent Australian Human Rights Commission (AHRC) national survey on sexual harassment has made it clear that sexual harassment in the Australian workplace is increasing. In June 2018, the AHRC announced a National Inquiry into Sexual Harassment in the Workplace in order to report, on other things, the prevalence and reporting of harassment and the
In September 2018, we reported on New York State’s issuance of draft guidance under the recently enacted New York State law aimed at preventing sexual harassment. New York State has now issued final guidance under this law. This includes final guidance regarding:
Note that, under the prior draft guidance, the first annual interactive anti-sexual harassment training was required to be conducted before January 1, 2019. The final guidance delays the requirement to conduct the first annual interactive training until October 9, 2019. The final guidance also seemingly relaxes the timing requirement for training new hires. Whereas the prior draft guidance specified that new hires had to be trained within 30 days of beginning employment, the final guidance encourages training new hires as soon as possible, but does not impose a deadline.
The October 9, 2018 deadline for New York State employers to adopt an anti-sexual harassment policy that complies with the new law is only days away. New York State employers who do not adopt the model policy issued by New York State can adopt individually tailored policies, as long as they meet the minimum requirements of the New York State law. Note that there are certain provisions in the New York State model policy that go beyond the minimum standards required of New York State employers, so for this and other reasons, employers may prefer to customize their own policies.
On May 9, 2018, New York City enacted a number of laws addressing sexual harassment in the workplace. The laws are summarized below. New York City employers who do not yet have anti-harassment and anti-retaliation policies in place should promptly begin the process for adopting them. New York City employers should also begin to make arrangements for providing their employees with anti-harassment training (upon hire and annually thereafter). Such training is now required under both New York State and New York City law. New York State’s law, which was also recently enacted, will become effective first. For a brief discussion of the recent New York State legislation, please see our prior blog post, New York State’s new sexual harassment prevention laws will require action by all New York employers.
Beginning April 1, 2019, New York City employers with 15 or more employees (which includes interns for purposes of this new law) must provide anti-sexual harassment training to all of their New York City employees on an annual basis. The training must also be provided to new hires (who will work more than 80 hours per year) during the first 90 days of their employment. The training must address the following items (at a minimum):
Also, the training must be “interactive.” However, the new law is clear that the training need not be in-person or live in order to be considered interactive. The New York City Commission on Human Rights will be developing an on-line training module that can be used by employers to satisfy this training requirement, as long as employers supplement the module with a description of their internal complaint procedures.
The law requires employers to maintain records of all trainings provided, including signed employee acknowledgements, for at least three years.
New York City employers should be aware that this New York City training requirement is in addition to, and not in lieu of, the recently enacted New York State sexual harassment training requirement. New York City employers should ensure that their training modules satisfy both state and city requirements, to the extent applicable. To read a copy of our recent client alert summarizing the New York State requirement, please see our prior legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws.
Effective September 6, 2018, all New York City employers must provide employees at the time of hire with an information sheet on sexual harassment. This information sheet will be developed by the New York City Commission on Human Rights and may be included in the employer’s employee handbook.
On April 12, 2018, New York State Governor Andrew Cuomo signed into law new measures aimed at preventing sexual harassment. We summarized these provisions in detail in our legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws, published on April 11th, in anticipation of the bill being signed into law. The new law requires New York State employers to adopt sexual harassment prevention policies and conduct annual training on such policies, restricts the use of non-disclosure and arbitration provisions related to claims of sexual harassment, and extends workplace protections against sexual harassment to non-employees. The new law requires prompt action on the part of most, if not all, New York State employers.
Effective October 9, 2018, every New York State employer (regardless of size and including those who employ only domestic and household employees) will be required to adopt a sexual harassment prevention policy that meets specified requirements. New York State employers who currently have anti-harassment policies in place will likely need to update their policies, as most policies that we have seen do not cover every item that is required by the new law.
As a result of the new tax reform legislation, employers may no longer deduct on their tax returns any “settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement” (emphasis added) or any “attorney’s fees related to such a settlement or payment.”
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You may be familiar with the Aesop fable in which a monkey convinces a naïve cat to burn his paw in order to pull chestnuts from a hot fire for their mutual satisfaction but then eats all the chestnuts himself. This “cat’s paw” doctrine, as it has been coined in employment litigation, has been applied
This article was written by Steven Adams, an Associate and Hermann Nieuwoudt, a Director at Norton Rose Fulbright South Africa
The Eastern Cape High Court has developed the common law and expanded the circumstances in which an employer may be held vicariously liable for its employee’s sexual harassment of another employee.
Phil-Ann Erasmus was employed
This article was written by Mandi Osher at Norton Rose Fulbright South Africa
Mere sexual attention will not necessarily amount to sexual harassment. Last month, the Labour Court found that something more may be required. To qualify as something more serious, sexual attention must cross the line from a sexual proposition to actual sexual harassment.