On April 11, 2023, the New York State Department of Labor (“NYSDOL”) released the State’s updated model Sexual Harassment Prevention Policy (a copy of the model policy, which employers can adopt, is available here). The NYSDOL also released an updated training video (available here) and new training presentation slides (available here) that incorporate the additions to the new policy.
The NYSDOL’s major revisions to the model policy include:
Memorializing the 2018 amendments to the New York Labor Law that reduced the measure of unlawful conduct from a “severe or pervasive” standard to lower conduct that is “less well” based on a legally protected characteristic and above a “petty slight or trivial inconvenience;”
Defining sexual harassment as a form of “gender-based” discrimination inclusive of gender, sexual orientation, gender identification and expression, and being transgender;
Explicitly stating that harassing conduct can occur in remote workplace settings;
Explicitly stating that intent is not a defense under the law. Rather, it is the impact on the victim and perspective of “reasonable victim of discrimination with the same protected characteristics” that will be relevant in assessing whether the law has been violated;
Explicitly stating that management must “accommodate the needs of individuals who have experienced harassment to ensure the workplace is safe, supportive and free from retaliation for them during and after any investigation;”
Adding a new section encouraging bystander intervention, including five (5) methods that can be used if an employee witnesses harassment or discrimination; and
Referencing New York State’s confidential hotline for complaints of workplace sexual harassment, which was introduced in July 2022.
To be clear, although the new model policy is focused on gender-based discrimination and is entitled “Sexual Harassment Policy for All Employers in New York State,” the New York State Human Rights Law protects against discrimination in other protected characteristics and the policy “should be considered applicable to all protected classes.” It is therefore important for employers to review and update their policies and training materials as soon as possible to ensure compliance.
If you have any questions regarding this article, or how to determine if your employment policies are legally compliant, please contact the Underberg & Kessler attorney who regularly handles your legal matters, or Ryan T. Biesenbach at (585) 258-2865 or rbiesenbach@underbergkessler.com
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