The New York Department of Labor (DOL) made some big changes this week when it updated its model sexual harassment policy. What does this mean? Well, sexual harassment policies at companies across the State now must be updated to comply with the DOL’s mandate which are designed to further strengthen protections for New York workers. Practically speaking, the changes also require employers to act quickly in order to ensure compliance.
The new version of the DOL’s model policy includes many notable changes. But it begins by including the already-known purpose and goals which are to maintain a workplace free from harassment and discrimination. Everyone can agree on that, of course.
The updated policy defines sexual harassment as “a form of workplace discrimination that subjects an employee to inferior conditions of employment due to their gender, gender identity, gender expression (perceived or actual), and/or sexual orientation.”
Notably, the model policy applies to both employees and so-called covered individuals. The definition of “employees” didn’t change and still includes all employees, applicants for employment, and interns, whether paid or unpaid. The term “covered individuals,” however, is new in 2023 and formalizes the already-existing reality that many people beyond traditional employees can be a harasser or a victim in a workplace. Those folks include anyone who is (or is employed by) a contractor, subcontractor, vendor, consultant, or anyone providing services in the workplace. This is an extensive list.
The model policy reiterates that the use of a complaint form isn’t necessary to report harassment. We know this, but the DOL now articulates in writing that employees and covered individuals may make a complaint verbally or by email. Also, if an individual is uncomfortable reporting to someone at work, they can report to the New York State Division of Human Rights and/or the United States Equal Employment Opportunity Commission. Although victims long have been able to contact these government agencies to seek justice, and the mandatory training requires that they be educated on this, employers must now include this information in their policies.
The model policy emphasizes that the perception of harassment often is determined by the recipient. Stated differently, if a victim believes they’re being sexually harassed, then they have the right to report the behavior. In other words, it doesn’t matter the intention behind the harasser’s behavior, speech, or conduct – what matters is the victim’s perception. As we often remark in our trainings, sexual harassment – much like beauty – is in the eye of the beholder.
Workplace policies must reflect that harassment need not be severe or pervasive to be unlawful. Instead, any behavior that rises above petty slights or trivial inconveniences can be harassment. Whether conduct is harassment needs to be determined from the standpoint of a reasonable victim.
What about discipline? Workplace policies must now reflect that the potential discipline for the harasser will vary depending on the conduct at issue, from education or counseling to suspension or termination when appropriate.
As New York workplaces continue to find a balance between in-person and remote work, the DOL recognizes the need to prevent harassment in a remote work environment in the same way it’s prohibited when workers are in-person. So compliant policies will address both remote and in-person work and acknowledge that harassment can occur remotely as well. Just like at a physical workplace, remote harassment never should be tolerated. For example, sexual-related remarks made over messaging platforms or images shown on a Zoom or Microsoft Teams screen can create a a claim for sexual harassment.
As in the past, the policy must be provided to employees when they’re hired and must be posted in all work locations. If you have remote workers, you must send out the policy via email and have it accessible on your shared network.
The following is a list of other revisions in New York’s model sexual harassment prevention policy:
- It emphasizes the importance of protecting victims from retaliation.
- Reiterates that sexual harassment is not limited to physical contact or sexually-suggestive expressions.
- Explains that harassment includes gender role stereotyping and treating others differently because of their gender.
- Clarifies that one’s intent does not establish a defense to complaints of harassment.
- The DOL provides examples of sexual harassment and retaliation.
- If they suspect or observe harassing behavior, supervisors should not be passive and wait for an employee to make a complaint. Instead, they’re required to act.
- Like the required yearly training, a policy now must explain that supervisors and managers have a special responsibility to ensure a safe workplace that’s free from harassment and discrimination.
- Supervisors must accommodate those who’ve experienced harassment and must understand that the investigation process may be uncomfortable and even re-traumatizing for individuals.
- Upon receiving a report, the model policy requires a prompt and thorough investigation as soon as possible and outlines the steps necessary for a thorough investigation.
- Encourages bystanders, even if not a supervisor or manager, to report harassment. The model policy includes five standard methods of bystander intervention that can be used when witnessing harassment.
- Provides information regarding the NY Division of Human Rights’ digital complaint process.
- Includes the phone number for the Division’s new sexual harassment hotline.
- The model policy concludes with a reminder that although it focuses on the prevention of sexual harassment, the New York Human Rights Law prohibits discrimination against several protected classes and explains that the sexual harassment prevention policies are applicable to all protected classes.
What should NY employers expect now? Well, if you’re an employer that’s already doing mandatory annual training, these changes will look familiar, because they’re designed to make your policy consistent with information required in the already-mandatory training. But if you’re an employer that hasn’t yet gotten on board with the yearly training, this information will look new – and it even might look draconian. But it’s the law, and the minimum standards for a compliant sexual harassment policy are outlined here.
With the announcement of the updated model policy, it’s time for NY employers to update their sexual harassment prevention policies in order to ensure compliance. Contact The Coppola Firm today to update your policy and remain compliant with NY law. You can email us at info@coppolalegal.com, call us at 716-839-9700, or stop by our office.
