New models’ sexual harassment policy serves as a reminder for NY employers

Back in 2019, during the height of the “Me Too” movement, New York state adopted several amendments to the New York State Human Rights Law in an effort to prevent and remedy sexual harassment. For employment lawyers like me, these changes were seismic. Among other things, the “severe and pervasive” standard for actionable harassment was changed to conduct that simply exceeds “petty slights or trivial inconveniences,” confidentiality agreements were significantly restricted and detailed sexual harassment policies and trainings became mandatory. Based on all of these changes, I was convinced that we would see an explosion of sexual harassment claims (and that I might never see my family again given the increase in new work).

But then COVID-19 happened. I was busier than ever trying to figure out requirements about quarantines and essential workers, but my predicted upturn in sexual harassment cases immediately turned into a bust. It turns out that employees are less likely to act inappropriately when they are required to social distance, wear masks or work remotely (notwithstanding certain reports of illicit Zoom mishaps). It seemed like months passed without even a mention of “sexual harassment” or “Me Too.”

While my prediction initially appeared to be wrong, I think that I might have just been early. With COVID-19 concerns winding down for many and employees returning back to work on a more regular basis, I’m getting more and more calls from employers about issues related to sexual harassment. At least anecdotally, it feels like the number of sexual harassment claims are picking up too. Based on some of the calls I receive, it seems like many employees have completely forgotten how to interact with others and are engaging in shocking behavior.

Assuming that my (delayed) prediction is correct and we do see an increase in harassment-related claims, what is an employer to do?

While there are myriad answers to this question, New York state recently made the first step very easy. Within the last few weeks, the New York State Department of Labor issued a revised Model Sexual Harassment Policy and template training materials that detail the applicable law, describes employers’ obligations, and provides employees with information about their rights and remedies.

Not everything in the revised Model Policy is completely new. Some of the updates provide additional details and clarification on the original model policy first issued five years ago in 2018. However, there are some substantive changes that employers should be aware of and pay attention to when considering their own policies.

Some of the notable changes include:

• Underscoring that both harassment and discrimination are prohibited. This prohibition applies not only on the basis of sex and gender, but on the basis of any protected characteristic under New York state law. The methods for reporting and investigating discrimination and harassment are the same in all cases.
• Additional focus on harassment based on gender and gender identity. Sex/gender terminology, including cisgender, transgender and nonbinary, are explained and defined more expansively. In addition, the revised Model Policy includes a reminder that sex/gender as a protected characteristic includes sexual orientation, gender identity and gender expression (perceived or actual), and discusses sex stereotyping as a form of gender-based harassment.
• In evaluating whether conduct is unlawful, the policy states impact, not intent, is key to making that determination. This analysis must be done through the lens of a “reasonable victim of discrimination with the same protected characteristics.”
• Emphasis on the many internal and external methods and avenues for making complaints, which include but are not limited to, emailed or verbal complaints, and, externally, the state’s confidential sexual harassment hotline number 1(800) HARASS3.
• Increased focus on the role of managers and supervisors in proactively addressing harassment, making clear that they cannot wait for an employee to complain if they have reason to believe that harassment is occurring. The Model Policy also makes clear that employers, managers and supervisors must take steps during any harassment-related investigation to make sure that complaining employees and witnesses are not retaliated against and the workplace is safe, supportive, and harassment-free.
• The addition of information on bystander intervention, including methods that individuals who witness harassment and discrimination can use to assist potential victims.
• New examples of sexual harassment and retaliation, along with a comment that an individual’s personal history may make them more sensitive to certain behaviors or actions.
• A discussion on remote work, which, as noted above, expanded significantly as a result of the COVID-19 pandemic. It is important to note that that sexual harassment can occur even when employees are not physically located in the same location. Harassing remarks or images shared over virtual platforms, in messaging apps and between personal cell phones during non-working hours are not acceptable. If an office operates fully remotely, it must share its sexual harassment policy via email and on its shared network.

Many businesses already used the existing model policy. In that situation, the fix is easy — you can simply replace your current policy it with the revised policy. The state has made the revised policy available on the New York State Department of Labor website. Employees should be notified and provided a copy of the new policy.

If, instead, your business created its own sexual harassment policy, check the revised model policy to see what has changed. The revised model policy includes a requirement that no section in the model policy should be omitted.

With these recent updates, it is a perfect time to step back, look at your policies — as well as your training programs, investigation practices, etc. — and make necessary changes to protect your employees and your business. Even if my general prediction of an increase in harassment claims is true, that doesn’t mean your business needs to be part of the trend.

Ben Mudrick is a partner in the Labor & Employment practice at Harter Secrest & Emery LLP.  He can be reached at [email protected] Anna S.M. McCarthy, Senior Associate, and Edward J. Steve, Counsel, also contributed to this column.