New York Breaks From Federal Sexual Harassment Standards
In the wake of the #MeToo movement and other widespread focus on sexual and gender-based abuse, New York has adopted a number of legislative measures which break from the federal standards, seeking to more aggressively combat sexual harassment. These changes have come quickly, and employers operating in New York should be aware of them to ensure that they are adopting the policies necessary to comply with the new requirements.
October 04, 2019 at 11:30 AM
6 minute read
While there have long been idiosyncrasies in New York state, city and local anti-discrimination laws, New York's laws against sexual harassment have traditionally mirrored federal standards, and thus sexual harassment claims brought under New York state law were "analyzed identically" to their federal counterparts. See Heskin v. InSite Aver., 2005 U.S. Dist. LEXIS 2546, *40, 2005 WL 407646 (S.D.N.Y. Feb. 22, 2005). Recently, however, in the wake of the #MeToo movement and other widespread focus on sexual and gender-based abuse, New York has adopted a number of legislative measures which break from the federal standards, seeking to more aggressively combat sexual harassment. These changes have come quickly, and employers operating in New York should be aware of them to ensure that they are adopting the policies necessary to comply with the new requirements.
Sexual Harassment Policies and Training Requirements
In 2018, the New York legislature and Gov. Andrew Cuomo enacted anti-sexual harassment reforms which impose stringent requirements for employers with respect to both sexual harassment policies and training.
Under the new law, which became effective Oct. 9, 2018, employers are required to implement a sexual harassment prevention policy and complaint procedure. The law has several stringent requirements as to what must be contained in such policies, and all employers operating in New York are required to adopt a policy that complies with these mandates. As such, even employers who already had a pre-existing anti-discrimination policy would be wise to have knowledgeable counsel review and update their policy to ensure that it complies with the new requirements. The New York State Department of Labor (NYSDOL) has published a model anti-harassment policy and model complaint form, which are available on its website, to provide guidance to employers and their counsel in crafting such policies.
The law also mandates that employers establish an annual, interactive sexual-harassment training program. While originally these training requirements were scheduled to take effect on Jan. 1, 2019, the NYSDOL and New York State Division of Human Rights (NYSDHR) pushed back the deadline to Oct. 9, 2019 for employers to complete their first annual training session. At a minimum, to comply with the law, the training must provide inter alia:
- An explanation of sexual harassment and specific examples of prohibited conduct.
- Sufficient information concerning federal, state and local anti-harassment laws, as well as remedies available to employees.
- A discussion of how employees can respond to unlawful conduct by supervisors and the additional responsibilities that supervisors have.
The law imposes additional requirements for the training, including that it be completed as soon as reasonable after each employee is hired, happen at least once per year, and be interactive. The NYSDOL has also published on its website certain tools and produced videos that employers can utilize in formulating the requisite training program.
2019 Legislative Sexual Harassment Reforms
Seemingly on the heels of the 2018 enactments, on Aug. 12, 2019 Governor Cuomo signed into law SB 6577, which creates several new protections and significantly enhances several existing protections against sexual harassment, as well as other forms of harassment and discrimination.
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