Model Sexual Harassment Prevention Policy Updates

New York law requires employers to maintain written sexual harassment policies and the New York State Department of Labor (“DOL”) has provided employers with model policies to use as guidance.  On January 12, 2023, the New York DOL released its updated Sexual Harassment Prevention Model Policy, which makes the following changes: 

• updates the definition of sexual harassment, defines different gender identities, and prohibits harassment on the basis of gender identity.  (“Sexual harassment includes all forms of gender discrimination including gender role stereotyping and treating employees differently because of their gender.”);

• updates the statute of limitations to report a claim to the New York State Division of Human Rights to three years (increased from one year);

• distinguishes the state standard, that sexual harassment does not need to be severe or pervasive, as is required under federal law and clarifies that intent is irrelevant;

• provides an updated list of examples of sexual harassment and retaliation;

• addresses bystander intervention methods and provides five standard methods of intervention;

• states that harassment may occur in remote work environments, the prevalence of which has largely increased since the COVID-19 pandemic and requires an employer’s sexual harassment policy to be provided to all employees in person or digitally through email upon hiring and be available on the employer’s organization’s shared network;

• provides the phone number for New York’s confidential hotline for complaints of sexual harassment in the workplace; and

• clarifies that discrimination is prohibited under New York law against all protected classes, which include age, race, religion/creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or status as a victim of domestic violence.

The public has from January 12, 2023 to February 11, 2023 to provide comment on the updated model policy.  The New York State DOL also is revising training videos and online resources and will be launching a public education campaign about the changes to the sexual harassment law.  

Digital Workplace Notices

New York employers must now make mandatory workplace postings available to employees electronically.  These notices include those issued by the New York Commissioner of Labor and those required by state or federal law.

The amended statute recognizes that many employees now lack access to a physical office space so notices must be posted on the employer’s website or circulated via email.  Employers also must inform their employees that electronic copies are available.

As the amendment went into effect immediately, employers should ensure that all required notices are circulated to employees in digital form, and ensure that they also notify employees that such notices are available electronically.