New York has released an updated model policy and training materials that address sexual harassment and discrimination prevention.
The Details
By way of background, New York requires employers to:
- Adopt written sexual harassment prevention policies that meet or exceed the state’s model policy’s requirements.
- Provide employees with information on the sexual harassment prevention hotline and classify the release of certain employee information as retaliation.
The New York State Department of Labor (NYDOL) has released an updated model policy and trainings on sexual harassment and gender discrimination that apply to all protected classes.
Key Model Policy Revisions
Definitions
The policy defines sexual harassment as a form of gender-based discrimination and clarifies definitions that fall under gender diversity, such as cisgender, transgender and non-binary persons. See the policy for further details.
New Provisions
The policy states that sexual harassment does not need to be severe or pervasive to be illegal in New York and that it can happen in a remote workplace.
The model policy also:
- States that impact (not intent) matters in assessing a sexual harassment claim.
- Clarifies that whether harassing conduct is “petty” or “trivial” is determined from the perspective of a reasonable victim of discrimination with the same protected characteristics under the New York State Human Rights Law.
- Provides examples of sexual harassment and retaliation. This includes intentionally misusing preferred pronouns and creating different expectations for individuals based on their perceived identities. See the policy for more examples.
- Makes reference to the confidential sexual harassment prevention hotline, which launched in July 2022.
Supervisor Responsibilities
Under the policy, supervisors and managers should be aware of how investigations into sexual harassment can impact victims and must accommodate such victims to ensure the workplace is safe, supportive and free from retaliation during and after an investigation.
Bystander Intervention
The policy also includes methods to use if a bystander witnesses harassment or discrimination. Under the policy, a bystander can:
- Interrupt the harassment (or ask a third party to help intervene, if they feel unsafe) by engaging with the person being harassed and distracting them from the harassment;
- Record or take notes on the harassment incident to help in a future investigation;
- Check in with the person who was harassed after the incident to see how they are feeling and reaffirm that the harassment was not ok; and
- If they feel safe to do so, confront any harassers and name the behavior as inappropriate. Note: When confronting harassment, physical assault is never appropriate.
Updated Model Training Materials
The NYDOL also updated its model training materials, which include a script and slides on preventing sexual harassment and discrimination. Key revisions to the trainings mirror much of the key revisions to the policy. The trainings also, among other things:
- Acknowledge that the subject matter can be sensitive or difficult for some employees, including those that might have experienced harassment, discrimination or violence in the past. The instructions state that if the training is being facilitated in a group (whether in person or virtually), trainers should make clear to those attending that anyone needing to step out briefly on behalf of their mental health may do so.
Note: All employees need to complete the training, but an employee may complete the training at a later time if need be.
- Include an exercise on identifying examples of sex stereotyping.
- Provide new scenario examples on the remote work environment and harassment that is based on gender identity. See the training for further details.
Note: The NYDOL has posted a new training video and other resources on its website to help employers navigate the updated policy requirements.
Next Steps
· New York employers should review and update their harassment prevention policies and training materials as soon as possible to align with the updated material provided by the state.
· ADP TotalSource has updated the Employee Handbook Builder to reflect New York’s new guidance.
· To update your policy, log into the Employee Handbook Builder, review the updated policy, and publish the new handbook. For assistance with uploading the revised handbook to the ADP portal, check the box on the Publish Handbook page, answer the prompted questions, and click Submit.
Please contact your dedicated service professional with any questions.