The New York State Department of Labor (“DOL”) has published an updated model Sexual Harassment Prevention Policy. The proposed policy is subject to public comment until February 11, 2023, after which the DOL will adopt a final version of the policy.
By way of background, effective October 9, 2018, covered New York employers were required to adopt sexual harassment prevention policies that meet or exceed the minimum standards set forth in §201-g of the New York Labor Law, or adopt and disseminate the model policy published by the DOL. The Labor Law requires the DOL to review and revise its model policy every four years to account for changes in the law and workplace.
The following are the key proposed changes in the 2023 model policy:
- Defines different gender identities (cisgender, transgender, and non-binary).
- Clarifies that harassment may be committed remotely.
- Reaffirms that gender-based harassment and discrimination are not limited to sexual contact or suggestive conduct, and includes gender stereotyping and treating employees differently because of their gender identity.
- Provides many additional examples of sexual harassment, discrimination, and retaliation across a broader spectrum of industries.
- Includes bystander intervention methods to encourage employees to intervene if they witness harassment in the workplace.
- Explains that harassment does not need to be severe or pervasive (the federal standard) to be unlawful.
- Clarifies that intent is not a defense to harassment and discrimination.
- Clarifies that whether conduct or behavior is unlawful is based on an objective standard – viewed from the standpoint of a reasonable victim.
- Clarifies that harassment exists where the conduct or behavior rises above “petty slights and trivial inconveniences.”
- Adds information regarding the New York State Division of Human Rights’ (NYSDHR) sexual harassment hotline.
- Clarifies that retaliation may include the public disclosure of personnel files in retribution for engaging in protected activities.
- Revises the “Investigation” section to provide that employers (and/or their investigators) must exercise “sensitivity” in handling complaints, and replaces a 30-day investigation timeframe with an obligation to complete the investigation “as soon as possible.”
- Updates the time to report a claim to the NYSDHR from one to three years.
- Clarifies that discrimination based on any of the protected classes is prohibited.
- Explains that complaints to the NYSDHR can be completed online.
- Re-emphasizes supervisors’ and managers’ obligation to report harassment and discrimination.
- Provides an expanded explanation that the policy applies to both employees and non-employees (independent contractors, vendors, gig workers, consultants and other service providers).
Our firm is monitoring this development and will advise employers and clients of the new policy requirements once adopted by the DOL. As was the case with the first model sexual harassment policy, employers will have the option of either adopting the model policy or drafting an individual policy that meets or exceeds the minimum standards contained in the DOL’s final version model policy.
For any questions regarding this topic, please contact Poricanin Law.