New York State Publishes Final Updates to Model Sexual Harassment Prevention Policy and Training Materials
The New York State Department of Labor (NYSDOL) recently released final—and significant—substantive changes to New York State’s model sexual harassment prevention policy (the “Final Updated Model Policy”) and related materials.
The changes address issues such as gender identity, remote work, and bystander intervention. As we previously reported, the NYSDOL proposed revisions to the template policy in January 2023, which have now been largely adopted. These changes arise from a 2018 amendment to the New York State Labor Law (NYSLL) that requires employers to adopt and train employees on sexual harassment prevention policies and requires the NYSDOL to review the model materials at least once every four years.
Importantly, the Final Updated Model Policy explicitly states that it reflects the minimum standard for compliant sexual harassment prevention policies and that “no section in [the Final Updated Model Policy] should be omitted.” And while the changes do not reflect a dramatic shift in the state’s overall policy, they are nonetheless substantive. Below, we highlight five key areas of the Final Updated Model Policy that employers should be aware of as they review and revise their current sexual harassment prevention policies to ensure compliance. Most of these changes carry through to the other documents that the NYSDOL has updated, including the Complaint Form for Reporting Sexual Harassment, the Model Sexual Harassment Prevention Training Deck, and the Model Sexual Harassment Training Script.
1. Expanded Definition of “Sexual Harassment”
The Final Updated Model Policy broadly defines “sexual harassment” as “gender-based” discrimination, which includes harassment or discrimination based on sex, sexual orientation, self-identified or perceived sex, gender identity, gender expression, or status of being transgender. To that end, the Final Updated Model Policy includes detailed discussions of gender diversity, gender identity, and gender expression, such as introducing the gender spectrum; defining relevant terms, such as “cisgender,” “transgender,” and “non-binary”; and providing new examples of harassment related to gender identity and gender expression, including the intentional misuse of an individual’s preferred pronouns, applying different expectations for individuals based on their perceived gender identities, or asking individuals to take on traditionally gendered roles.
In addition to this more nuanced discussion of sexual harassment and gender identity, the Final Updated Model Policy incorporates and emphasizes New York State’s lower standard for establishing unlawful harassment. In contrast to federal law, under New York law, harassment need not be severe or pervasive to be unlawful; rather, the conduct must only subject an individual to inferior terms, conditions, or privileges of employment. In other words, unlawful harassment must be more than a “petty slight” or “trivial inconvenience” as “viewed from the standpoint of a reasonable victim of discrimination with the same protected characteristics.”
2. Clarification of Where, When, and by Whom Sexual Harassment May Occur
In a reaction to the shifts in how and where we work since the pandemic, the Final Updated Model Policy protects both in-person and remote employees and non-employees and defines “covered individuals” as contractors, subcontractors, vendors, consultants, gig workers, or anyone performing services at the worksite pursuant to a contract with the employer. As such, several new examples are incorporated into the Final Updated Model Policy to reflect the ways in which sexual harassment can occur in hybrid workplaces, such as online through virtual platforms and messaging apps, on company and personal cell phones, and during or outside of working hours.
3. Addition of Information on Bystander Intervention, Retaliation, and Other Forms of Harassment
Besides clarifying and expanding concepts from prior versions of the template, the Final Updated Model Policy also includes three new sections, the most notable of which is about bystander intervention. The focus of bystander intervention is to empower third parties to disrupt potential incidents of harassment or discrimination and place the responsibility of harassment in the workplace on all aware parties, and not just directly impacted individuals. The Final Updated Model Policy outlines five techniques for employees and covered individuals to utilize when engaging in bystander intervention.
In recent years, bystander intervention has been an area of focus for the Equal Employment Opportunity Commission, as well as other state and local legislatures. New York City has required bystander intervention training as a part of its harassment training since the law became effective in 2019. Chicago mandates a separate one-hour bystander intervention training annually. This trend may continue to expand to additional jurisdictions in the future.
In a similar vein, the Final Updated Model Policy also places additional responsibilities on supervisors and managers to ensure that individuals who raise concerns are protected from retaliation during and after any investigation.
Finally, employers should keep in mind that while the Final Updated Model Policy focuses primarily on sexual harassment and gender discrimination, the new “Purpose and Goals” and “Conclusion” sections both make clear that the template’s processes and policies apply equally to harassment and discrimination based on any other legally protected characteristic.
4. Incorporation of Other Relevant Legislation and Administrative Action Since 2018
In addition to New York State’s move away from the “severe and pervasive” standard for harassment in 2019, the Final Updated Model Policy also reflects other key pieces of state legislation and administrative action from the intervening years, to wit:
- outlining the three-year statute of limitations period to file complaints of sexual harassment with the New York State Division of Human Rights (which was increased from one year);
- providing for the public release of personnel files as an example of unlawful retaliation; and
- identifying the New York State Division of Human Rights’ sexual harassment hotline, which went live in July 2022.
Additionally, the materials confirm that during training each year, employers must provide employees with a notice that contains (i) the employer’s sexual harassment prevention policy; and (ii) a copy of the information presented at the sexual harassment prevention training (collectively, “Notice”). This requirement was part of the 2019 amendments to the law.
5. A Note Regarding Policy Customization
According to the NYSDOL, employers do not have to adopt the Final Updated Model Policy exactly “as-is” to comply with New York law, so long as their individual sexual harassment prevention policies meet certain minimum standards. These standards are outlined in the NYSLL, as well as in a separate NYSDOL-published guidance document (the “Minimum Standards Guidance”). Although the NYSDOL made significant edits to the Final Updated Model Policy, no such changes were made to the Minimum Standards Guidance, which was last updated in 2019.
Nevertheless, these two resources now have (at least) one glaring inconsistency. Namely, while the Minimum Standards Guidance states that employers need not adopt the Final Updated Model Policy exactly as-is, the Final Updated Model Policy itself includes a disclaimer that permits employers to tailor the template document but warns that because the Final Updated Model Policy is a “minimum standard, no section in this policy should be omitted.” A conservative reading of the disclaimer suggests that sexual harassment prevention policies must now include all 10 of the sections contained in the Final Updated Model Policy—and not just the eight bullet points listed on the single page of the Minimum Standards Guidance and in the law—in order to be compliant.
Without clear guidance from the NYSDOL, New York employers must consider whether to adopt the Final Updated Model Policy as-is (or at least substantially as-is) or to rely on existing policies with updates as reflected by the NYSDOL in this round of changes.
