New York employers should review their sexual harassment policies, procedures and training materials to ensure compliance with the updates recently made by New York State Department of Labor (“NYSDL”).  On April 11, 2023, NYSDL finalized its revisions to New York’s sexual harassment prevention materials, which are available here.  As you are already probably aware, it is a requirement for every employer in New York State to adopt a sexual harassment prevention policy and must ensure, if such employer does not adopt the model policy provided by NYSDL, that its policy meets or exceeds the minimum standards set forth in New York State model policy.  In addition, employers in New York are required to conduct annual sexual harassment prevention training for employees.

Model Policy Minimum Standards

Employers will need to exceed minimum standards when adopting their sexual harassment prevention policy.  Information employers need to consider when drafting such policies include, but are not limited to:

• prohibit sexual harassment in accordance with the Department of Labor and Division of Human Rights’ guidance;
• include examples of prohibited conduct that would be unlawful and clearly state that sexual harassment is considered a form of employee misconduct that will be sanctioned by the employer;
• provide information regarding federal and state statutory provisions, as well as remedies available for victims;
• provide a complaint form and have an internal grievance procedures;
• include and have a procedure for timely as well as confidential investigations of complaints;
• indicate employees’ right to redress;
• reference available forums for adjudicating these types of complaints both in an administrative and judicial manner; and
• include a no retaliation policy against individuals who raise complaints, testify or assist in any investigation or proceeding.

Training Materials

As previously mentioned, employers are required to provide employees sexual harassment prevention training.  Similar to the adoption of the model policy referenced above, if you, as an employer, decide to create your own training materials as opposed to using the ones developed by the Department of Labor and Division of Human Rights, you must meet or exceed the minimum standards.  Your annual sexual harassment prevention training must include, among other things:

• the use of interactive materials;
• an explanation of sexual harassment in accordance with the Department of Labor and the Division of Human Rights’ guidance;
• examples of conduct that would constitute unlawful sexual harassment;
• information regarding federal and state statutory provisions, as well as remedies available for victims;
• information regarding employees’ right to redress; 
• reference available forums for adjudicating these types of complaints both in an administrative and judicial manner; and
• information regarding the conduct by supervisors and the additional responsibilities they carry.

Recent Changes

The recent revisions to the model sexual harassment policy include, but are not limited to: (1) emphasis on gender diversity and identity; (2) addressing post-pandemic hybrid and remote workforce; (3) a new legal standard which clarifies the standard for harassment that does not need to be “severe or pervasive conduct” in order to be illegal but that must rise above “petty slights or trivial inconveniences;” (4) expansion of the retaliation section as well as additional examples of sexual harassment; and (5) new responsibilities for bystander intervention that witness the behavior, among other topics.  New York State model policy also now includes reference and information to the Division of Human Rights’ sexual harassment hotline, which was introduced in July 2022 and explains that individuals may call the hotline not only for attorney referrals but also for additional information around filing a complaint.

Please note that this blog should be read for informational purposes only.  If you have any questions or require additional information on this topic, please contact our office.

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