On April 11, New York Governor Kathy Hochul announced that the New York State Department of Labor (“NYS DOL”) was releasing long-awaited updates to New York’s Sexual Harassment Model Policy. The New York State Labor Law requires all employers in New York State to adopt a sexual harassment policy and provide sexual harassment training to employees. Among other revisions, the updated model policy and resources specifically address questions about sexual harassment in a remote working context, as well as expand upon what might constitute gender-based harassment and discrimination.
Under Section 201-g(1)(b) of the New York Labor Law Section, employers must “adopt the model sexual harassment prevention policy . . . or establish a sexual harassment prevention policy to prevent sexual harassment that equals or exceeds the minimum standards provided by such model sexual harassment prevention policy.” Section 201-(g)(4) permits the model policy and associated resources to be updated every four years, which prompted these revisions.
The revised policy sets forth a number of new provisions, we highlight several key changes below:
- Remote employees: The revised policy confirms that various examples of sexual harassment, including displays, publications, gestures, noises, remarks, or jokes “made over virtual platforms and in messaging apps when employees are working remotely can create a similarly hostile work environment.”
- Gender-based discrimination: A number of revisions highlight that sexual harassment includes harassment based on gender expression, gender identity, the status of being transgender, and gender role stereotyping. A new provision in the section defining sexual harassment provides descriptions of the “gender spectrum,” as well as definitions of cisgender, transgender, and non-binary, the “three most common ways people identify.”
- Severe or pervasive: The model policy now reads, “[h]arassment does not need to be severe or pervasive to be illegal.” It further explains that “[e]very instance of harassment is unique to those experiencing it, and there is no single boundary between petty slights and harassing behavior. However, New York State’s Human Rights Law specifies that whether harassing conduct is considered petty or trivial is to be viewed from the standpoint of a reasonable victim of discrimination with the same protected characteristics.”
- Bystander intervention: The model policy contains a new section on bystander intervention, which suggests “five standard methods of bystander intervention that can be used when anyone witnesses harassment or discrimination and wants to help.”
- Examples of sexual harassment: Prior versions of the model policy contained a list of the examples of sexual harassment and retaliation across various careers and industries. The revised policy contains an updated list of examples, which NYS DOL cautions are not exhaustive.
- State hotline: In July 2022, New York State launched a confidential hotline for complaints of workplace sexual harassment. The model policy now includes this hotline as a resource for more information about filing a sexual harassment complaint.
NYS DOL has provided revised FAQs, which provide further detail on employer obligations and the scope of the law. There is also a webinar for employers who wish to learn more. For more information about these issues, please contact the professionals listed below.
For further information, please contact:
Ira M. Saxe, Partner, Crowell & Moring
isaxe@crowell.com
