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Proposed Updates to NY’s Model Sexual Harassment Prevention Policy

On January 12, 2023, the New York Department of Labor released a proposed revised sexual harassment prevention model policy for public review and comment. Below is a list of some of the key revisions.

  • A stronger emphasis on gender identity discrimination, including a statement that discusses the “gender spectrum,” and defines “the three most common ways people identify” as cisgender, transgender and non-binary;
  • A new statement on bystander intervention, which encourages witnesses to report observed harassment and reminds supervisors/managers that they are required to do so and inclusion of applicable intervention methods;
  • Reference to broader discrimination as the current model policy focused mostly on “sexual” harassment, with no reference to other forms of unlawful discrimination or harassment, the proposed policy includes new language stating that “discrimination of any kind, including sexual harassment” is prohibited;
  • An expanded discussion of New York’s broadened definition of harassment – Discussion of what constitutes harassment is more detailed, specifically noting that it need not be severe and pervasive to be illegal and that employees and covered individuals should not feel discouraged from reporting harassment because they do not believe it is bad enough;
  • New retaliation examples which include specific examples of actions that may be deemed retaliatory conduct including, but not limited to:
    • Demotion, termination, denying accommodations, reduced hours, or the assignment of less desirable shifts;
    • Publicly releasing personnel files;
    • Refusing to provide a reference or providing an unwarranted negative reference;
    • Labeling an employee as “difficult” and excluding them from projects to avoid “drama”;
    • Undermining an individual’s immigration status; or
    • Reducing work responsibilities, passing over for a promotion, or moving an individual’s desk to a less desirable office location;
  • Language related to remote work throughout the policy in addition to ways remote workers can perpetrate or be the victims of harassment over virtual platforms and messaging apps;
  • Reference to new sexual harassment prevention hotline, in addition to a statement on the type of assistance the hotline can provide; and
  • More emphasis and access to external remedies using the provision of hyperlinks for filing complaints with the various enforcement agencies.

Next Steps for Employers

At the time of this post, these changes were still in the proposed phase and are not yet final. However, it is certain that once released in the final form, employers will need to make updates to their sexual harassment and/or non-harassment/non-discrimination policy. When Labor Law 201-g was enacted, New York employers were required to either adopt the state’s model policy or establish its own policy, providing that it meets or exceeds the standards in the model policy. Furthermore, given the addition of items such as “bystander prevention” language, broader definition of harassment, and examples of “retaliation”, employers may need to review and update their harassment training content and materials to incorporate these concepts.

These proposed changes should also serve as reminder to all NY employers to continue to ensure that they are providing annual sexual harassment prevention training to all employees in accordance with the state’s law; new hires should continue to receive training as soon as possible.

HR Works will continue to monitor this topic and provide updated information as it becomes available.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.