The New York State Department of Labor has added a new model sexual harassment training policy and new training materials to its "Combating Sexual Harassment in the Workplace" website. While employers are not required to adopt the exact wording of the new model policy verbatim, they should review their current handbooks to make sure their policy meets the minimum standards set forth by the Department of Labor.
New Model Policy
The Department of Labor's website includes a list of the "minimum standards" that an employer's policy must meet. The new model policy includes concepts not specifically addressed in the minimum standards, but the minimum standards do require that an employer's policy "prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights." It is not clear what "guidance" the Department of Labor is referring to in the minimum standards (as the link provided is to the Department of Labor's website), but if "guidance" includes the new model policy, employers should incorporate the changes included in the new model policy, which include the following:
- Definition of Sexual Harassment
One significant change is that the new model policy specifies that "[i]n New York, harassment does not need to be severe or pervasive to be illegal" and advises that "individuals should not feel discouraged from reporting harassment because they do not believe it is bad enough, or conversely because they do not want to see a colleague fired over less severe behavior."
While the new model policy states that "there is no single boundary between petty slights and harassing behavior," it explains that whether behavior rises to the level of unlawful harassment "is to be viewed from the standpoint of a reasonable victim of discrimination with the same protected characteristics," and advises that any behavior in which a person is "treated worse because of their gender (perceived or actual), sexual orientation, or gender expression " is a violation of the policy.
- Explaining Gender Discrimination
The new model policy explains that the behavior need not be sexual in nature to be unlawful gender discrimination and that "discrimination based on sex stereotypes, gender expression and perceived identity are all forms of sexual harassment." The new model policy explains the concept of "gender identity" and defines the terms "cisgender," "transgender" and "non-binary." The examples of prohibited harassment now include examples based on gender identity, such as the "intentional misuse of an individual's preferred pronouns" and "creating different expectations for individuals based on their perceived identities."
- Impact Not Intent
The new model policy emphasizes that "[t]he intent of the behavior, for example, making a joke, does not neutralize a harassment claim" and specifies that "[n]ot intending to harass is not a defense. The impact of the behavior on a person is what counts."
- Bystander Intervention
While supervisors and managers have long been required to report any harassment they are aware of, the new model policy has a new section that encourages "bystanders" – individuals who witness harassment – to intervene and report the conduct. The new model policy contains a non-exhaustive list of five methods bystander may use, which include recording or taking notes of the harassing incidents. Employers who have "no recording" policies should therefore tread carefully before disciplining employees who have recorded harassing behavior.
- Remote Work
The new model policy explains that sexual harassment can occur when employees are working remotely at home, such as through virtual meetings and messaging apps.
- Harassment Hotline
The new model policy includes the toll-free hotline, 1(800)HARASS3 established by the New York State Division of Human Rights, previously reported here.
- Emphasis on Sensitivity
The new model policy recognizes that "[b]eing identified as a possible victim of harassment and questioned about harassment and discrimination can be intimidating, uncomfortable and re-traumatizing for individuals." It instructs supervisors and managers to "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." The new model policy also cautions that individuals who receive claims and lead investigations must handle complaints and questions with sensitivity toward those participating" so as not to "retraumatize" an employee.
- Other Harassment and Intersecting Identities
The "Purposes and Goals" and "Conclusion" sections of the new model policy refer to harassment and discrimination based on other protected characteristics and explain that the reporting, investigation and prevention policies are the same for harassment based on those other protected characteristics, "including discrimination due to an individual's intersecting identities."
Under the section titled "Who can be a Target of Sexual Harassment," the new policy states that "discrimination experienced by an employee can be impacted by biases and identities beyond an individual's gender," and provides examples of how other identities, such as race, immigration status and experience as a survivor of domestic or sexual violence, may impact an individual's experience of sexual harassment.
New Training Materials
The DOL also adopted revised model training materials, including a script, slides, and a new video (to be used in conjunction with a written assessment form) which reflect the additional material in the new model policy, such as defining gender identity, providing examples of actions bystanders can take, clarifying that harassment does not have to be "severe or pervasive" and need only rise above the level of a "petty slight" or "trivial inconvenience" to be unlawful, as well emphasizing that it is the impact of the behavior, not the intent, that matters in determining whether conduct violates the policy.
Next Steps for Employers
Employers should review their anti-harassment policy and the information presented at their annual training sessions to make sure the policies meet the minimum standards required in New York. While employers are not required to adopt the new model policy in its entirety, employers should consider revising their policies and training materials to include the changes in the new model policy. DWT attorneys are available to review and revise handbook policies and training materials.