On April 11, 2023, the New York State Department of Labor, in collaboration with the New York State Division of Human Rights, released an updated model anti-sexual harassment policy and an updated model training. Among other things, the new model policy adds further context to the purpose of the law, considerations individuals should have when approaching harassment claims and investigations (e.g., considering the impact of alleged harassment on the complainant), and more details regarding the complaint process.
Specifically, the most notable details include:
- Making clear that other forms of discrimination/harassment (such as race, creed, color, etc.) are also prohibited under the law.
- Discussing the intersectionality of each of the various protected classes.
- Clarifying that discipline for violations of the anti-harassment policy will vary depending on the severity of the violation.
- Clarifying the standard that must be met for behavior to be considered harassment under the law, including a discussion of petty slights and trivial inconveniences, that the alleged harassment will be viewed as such by a reasonable person, and that intent does not impact whether conduct is harassing.
- Addressing remote workers and how harassment may manifest remotely.
- Expounding on definitions related to gender discrimination and harassment (i.e., cisgender, transgender and nonbinary) and providing examples of harassment related to gender.
- Providing specific examples related to retaliation.
- Adding a description of bystander intervention and how employees can use it to disrupt harassment.
- Including the Anti-Harassment Hotline in the Legal Protections and External Remedies section.
Although the core statutory requirements have not changed, employers are required to “prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights,” and this new model policy is such guidance. Therefore, employers should review their current policies to ensure that they are consistent with the newly issued guidance. Likewise, employers should review their training to address these changes. BakerHostetler’s New York Employment team is ready to assist you with this.