On April 11, 2023 the New York State Department of Labor (NYSDOL), in conjunction with the New York State Division of Human Rights (NYS DHR) released a strengthened Sexual Harassment Prevention Model Policy adding new language to include remote workers, define different gender identities, expand on gender discrimination, and provides examples of sexual harassment and retaliation across a broader spectrum of careers as well as a revised Model Sexual Harassment Training. The revised training includes changes similar to those made to the policy.
The expansion of gender discrimination now includes and defines conduct beyond sexual conduct or sexually suggestive conduct, including stereotyping or treating employees differently because they identify as cisgender, transgender, or non-binary. The revised policy states that the methods for reporting and investigating discrimination based on these identities are the same as sexual harassment and retaliation under the original policy.
The revised policy expanded to cover remote employees being harassed over virtual platforms and messaging apps. It specifically indicates that sexual displays in the virtual or remote workspace such as having such materials visible in the background of one's home during a virtual meeting constitutes sexual harassment. The revision also mandates employers to post their sexual harassment policy on their shared network for remote workers.
Additional examples of retaliatory conduct were also written into the new policy and it includes a reference to the New Sexual Harassment Prevention Hotline which launched in 2022. The hotline provides information about filing a sexual harassment complaint and speaking with a volunteer attorney who can provide "limited free assistance" to the caller.
The revised policy also adds a new section addressing bystander intervention. This section reminds supervisors that they are required to report sexual harassment, encourages employees to do so, and includes five examples of ways that a bystander could intervene in a sexual harassment situation:
- A bystander can interrupt the harassment by engaging with the individual being harassed and distracting them from the harassing behavior;
- A bystander who feels unsafe interrupting on their own can ask a third party to help intervene in the harassment;
- A bystander can record or take notes on the harassment incident to benefit a future investigation;
- A bystander might check in with the person who has been harassed after the incident, see how they are feeling and let them know the behavior was not ok; and
- If a bystander feels safe, they can confront the harassers and name the behavior as inappropriate. When confronting harassment, physically assaulting an individual is never an appropriate response.
At the end of the policy, the NYSDOL added language allowing the Equal Employment Opportunity Commission (EEOC) to reach settlements and mediate on behalf of complainants. The policy states that the EEOC will first seek a voluntary settlement with the employer before issuing a right to sue letter which gives the complainant permission to file a lawsuit in federal court.
For further information regarding these changes to the New York State Sexual Harassment Prevention Model Policy and Model Training please contact Laura L. Spring, Esq. at CCBLaw.