New York Department of Labour publishes new model sexual harassment policy

At a glance

• In April 2023, the New York State Department of Labour published a new model sexual harassment training policy and training materials.
• Every employer in the State of New York is required to either adopt the model policy or adopt a policy that meets or exceeds the minimum standards, pursuant to Section 201(g) of the Labour Law.

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You may find the new model sexual harassment training policy and training materials here. The minimum standards may be found here.

Notable changes to the model policy include:

Remote Work

Clarifying that sexual harassment can occur when employees are working remotely from home, including “on virtual meeting platforms, in messaging apps, and after working hours between personal cell phones.”

Bystander Intervention

Adding a section on bystander intervention and the five standard methods of bystander intervention that can be used when anyone witnesses harassment or discrimination and wants to help.

Gender Discrimination

Reaffirming that gender-based discrimination includes harassment on the basis of sex, gender expression, gender identity, and the status of being transgender. The model policy emphasizes that “understanding gender diversity is essential to recognising sexual harassment because discrimination based on sex stereotypes, gender expression and perceived identity are all forms of sexual harassment.” The policy further defines the terms “cisgender,” “transgender,” and “non-binary” and includes intentional misuse of an individual’s preferred pronouns as another example of sexual harassment.

Role of Intent

Clarifying that the absence of an intent to harass is not a defence and that “the impact of the behaviour on a person is what counts.” Thus, “the intent of the behaviour, for example, making a joke, does not neutralise a harassment claim.”

Definition of Sexual Harassment

Clarifying that in New York, harassment does not need to be severe or pervasive to be illegal. It can be any harassing behaviour that rises above petty slights or trivial inconveniences. Whether harassing conduct is considered petty or trivial is to be viewed “from the standpoint of a reasonable victim of discrimination with the same protected characteristics.”

Complaints and Investigations

Recognising that “participating in a harassment investigation can be uncomfortable and has the potential to retraumatise an employee.” The new policy instructs employers to handle claims and investigations with sensitivity and 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.”

Harassment Hotline

Including the New York State Division of Human Rights’ sexual harassment hotline.

New York employers are encouraged to review and revise their sexual harassment policies to reflect the changes in the new model policy and training materials.