In 2018, New York State Labor Law was amended to require all employers, regardless of size, to adopt written sexual harassment prevention policies. To assist employers in this effort, the NYS Department of Labor (NYSDOL) issued a Model Sexual Harassment Prevention Policy. The policy, which is to be reviewed and revised every four years, provides a template for employers to ensure their company policies meet minimum standards. Now, four years since its adoption, the NYSDOL has issued proposed changes to the model policy.
On January 12, 2023, the NYSDOL issued their proposed updates after holding an in-person public hearing to collect feedback from the employees, employers and other interested parties. Some of the proposed changes include:
- An updated definition of sexual harassment to include gender-based discrimination such as gender stereotyping and treating differently those who may identify as non-binary, transgender or cisgender.
- An expanded definition of who the policy applies to—“covered individuals” includes not only employees but also independent contractors, gig workers, consultants or other persons providing services within the workplace.
- Additional examples of sexual harassment, discrimination and retaliation that include scenarios that may occur during remote work, namely via messaging applications, use of virtual platforms and inappropriate materials visible in the background of one’s workspace.
- The addition of a section on “bystander intervention” to encourage employees who witness harassment to report it even though they are not required to as supervisors are—this section also illustrates five ways a bystander can intervene.
- Additional clarification that, under state law, the harassment need not be severe and pervasive as required under federal law.
- Additional language that intent is irrelevant and will not neutralize a harassment claim—the impact that the unwelcome conduct has on the individual is what will count.
- The addition of information regarding the DHR sexual harassment hotline.
The public comment period closes February 11, 2023. The public has until that date to view and comment upon the proposal.
