New York Proposes Incorporating Gender Identity, Remote Work into Sexual Harassment Model Policy

On January 12, 2023, the New York State Department of Labor (the "NYSDOL"), in consultation with the New York State Division of Human Rights (the "NYSDHR"), released a proposed Sexual Harassment Prevention Model Policy aimed at strengthening employee protections and revising the prior model policy, which had been in place since late 2018. The public now has until February 11, 2023, to provide written comments on the proposed model policy, which can be done here.

By way of background, in April 2018 New York's then-Governor Cuomo signed into law a requirement that all New York employers either adopt model policies promulgated by the NYSDOL prohibiting sexual harassment or have their own policies in place that equal or exceed the standards set by the NYSDOL. Later that same year, the NYSDOL issued the first Sexual Harassment Prevention Model Policy, which we highlighted in our previous advisories (available here, here, and here). The law also requires that the NYSDOL review and revise the Sexual Harassment Prevention Model Policy every four years, which explains the NYSDOL's release of this updated proposed model policy.

The updated proposed Sexual Harassment Prevention Model Policy can be found here. The most prominent additions to this updated proposed model policy include the following:

• (1) Remote Work — The proposed model policy addresses the new reality of remote work in several instances. The prior version of the model policy required that an employer's anti-harassment policy be posted prominently in all work locations and be provided to all employees upon hiring. Now the proposed model policy states that for offices operating remotely, employers must send the model policy through email upon hiring and also make the policy "available on the organization's shared network." The proposed model policy also seeks to make clear that sexual harassment can take place when employees work from home and provides examples to that effect.
• (2) Defining Gender Identities — The proposed model policy also explains that sexual harassment includes discrimination based on sex stereotypes, gender identity, gender expression and perceived identity and, in so doing, defines the three most common ways individuals identify on the gender spectrum — cisgender, transgender, and non-binary.
• (3) Bystander Intervention — Finally, the proposed model policy contains a new section on bystander intervention, which outlines five standard methods that can be used by an employee witnessing harassment as a bystander. The proposed model policy further states that any employee witnessing harassment is encouraged to report it but reiterates the point that supervisors and/or managers are required under the law to report harassment.

In sum, while New York employers are not required to adopt the updated Sexual Harassment Prevention Model Policy, once it becomes effective, employers are required to have their own policies in place that equal or exceed the standards set by the NYSDOL. Thus, New York employers should prepare to update their sexual harassment prevention policies and procedures accordingly once the NYSDOL publishes a final version of the model policy. DWT will continue to monitor these issues and provide updates as needed. In the meantime, if you have any questions about your company's compliance, please contact a member of the DWT Employment Services Group.