New York Continues To Crack Down On Sexual Harassment, Now With a New Model Policy
In what seems like a New York minute, New York State issued a stronger and longer anti-harassment policy.
The goal of the new policy, according to Governor Kathy Hochul, is to ensure “safe and inclusive work environments.”
The model policy constitutes a major expansion of current law with a greater focus on gender identity, bystander intervention, retaliation, and sexual harassment that occurs on- and offsite.
The New York Model Policy Elaborates On Out-of-Office Sexual Harassment Provides More Nuanced Examples
Since I started writing this blog, I advised employers to have a clear, anti-harassment policy in their employee handbook that discusses specific misconduct, i.e., no sexual or sexist jokes, sexual puns, sexual innuendo, smacks on the butt, grabbing of any body parts, quid pro quo harassment (and what that means), or pictures of half-naked women at work.
I said that a policy should be explicit and to use examples.
New York’s new policy includes examples the average employer may not contemplate, including:
- sexually oriented gestures, noises, remarks or jokes, or questions and comments about a person’s sexuality, sexual experience, or romantic history;
- Remarks regarding an employee’s gender expression, such as wearing a garment typically associated with a different gender identity; or
- asking employees to take on traditionally gendered roles, like asking a woman to serve coffee at a meeting when it is not part of, or appropriate to, her job duties.
- repeated (unrequited) requests for dates or other seemingly romantic gestures – like gift-giving.
New York’s Department of Labor and Human Rights Division (“New York”) clarifies that such examples include remarks made over virtual platforms and in messaging apps when employees are working remotely can create a similarly hostile work environment.
Sexual harassment extends to a virtual workspace and includes screensavers and posters or photos that can be seen in the background. It includes calls, texts, emails, and on social media.
Thus, employers must be vigilant to eradicate sexual harassment even in places they may not be able to fully control.
Bystander Intervention Works
As I told you here, a bystander isn’t just someone who witnesses an event.
Bystanders can intervene by saying something or even imparting social clues such as shooting a look at the teller of a racist or sexist joke or comment.
The new model policy explains the five standard methods by which a person can intervene in unlawful harassment or discrimination:
- A bystander can interrupt the harassment by engaging with the individual being harassed and distracting them from the harassing behavior;
- A bystander can ask someone else for help – especially if it feels unsafe (physically or psychologically) to intervene directly;
- A bystander can record or take notes about an incident, which may interrupt the harasser and may aid a future investigation;
- A bystander might check in with the person who has been harassed after an incident and validate that such behavior is not ok; and
- A bystander can confront the harasser(s) and name the behavior as inappropriate.
Regardless of the method used, calling out unacceptable and inappropriate comments tends to diffuse a situation and demonstrates that the workplace will not tolerate potentially unlawful behavior.
As Ever, Employers Need to Be Careful Not To Retaliate
The bar for retaliation in New York is low.
To make out a claim for retaliation, an employee need only demonstrate that (1) she was engaged in a “statutorily protected activity” by opposing an employment practice which she has a good faith, reasonable basis to believe is unlawful; (2) an “adverse employment action” was taken by the employer; and (3) there is a causal connection between the two.
Along with the usual retaliatory actions (firing, demotion), the new model policy explains that an adverse employment action need not be job-related or even occur in the workplace! One example is the disparaging someone on social.
Another is one you may not have thought was retaliatory: labeling an employee as “difficult” or excluding them from a project or client pitch to avoid “drama.”
Unlike federal law, under New York State’s Human Rights Law, a worker need only show that the treatment they experienced rose above “petty slights or trivial inconveniences.”
This is not the “severe or pervasive” standard that most employers know under Title VII of the Civil Rights Act of 1964 and means that incidents of harassment that would not survive under federal law may very well survive under New York law. This is a low bar.
Employers need to be ready. Here are some best practices:
First, update your anti-harassment policies to incorporate the model policy’s requirements and include examples. Employers should also publish the New York hotline number that went into effect last year, which enables workers to report sexual harassment anonymously.
Second, ensure your updated anti-harassment and anti-discrimination policies are disseminated throughout your company and understood by all of your employees. Yes, you should obtain a signed acknowledgment that employees received and reviewed these policies.
Remember to provide a written procedure for reporting (to more than one person, if possible) and thoroughly investigating claims of unlawful harassment and follow the procedure, documenting the process along the way.
Take swift and decisive corrective action to prevent such conduct if the investigation finds sexual harassment occurred. That may mean suspending or terminating the perpetrator. Have clear standards for what type of conduct merits discipline and the types of discipline.
Encourage reporting of any unlawful harassment by men and women—a “say something if you see something” mentality; convey, via your policies and practices, that your company prohibits retaliation.
Utilize your HR Department. That’s what they’re there for!
Employers, ensure that you and your HR departments are on board with these new, and the pre-existing, state sexual harassment prevention requirements.
New York Governor Hochul expressed that these policy changes and resources “will help businesses adapt their policies to the modern workplace and solidify New York’s standing as a national leader for worker protection.” Employers, are you ready?