The New York State Department of Labor (DOL) recently released updates to the state's model sexual harassment prevention materials, including its model sexual harassment policy as well as its model sexual harassment prevention training slides and training script. The state has also issued a new training video and other updated resources. All templates and resources are designed to help employers comply with state law. Employers should review their current policies and trainings in light of the changes discussed in this alert with an eye toward implementing modifications to reflect certain updates.

Since the enactment of amendments to New York State's Labor Law in 2018 (as we previously reported), employers in New York State are required to maintain a written sexual harassment prevention policy and conduct annual employee trainings. The state is responsible for creating model documents that satisfy the minimum standards for such policies and training and is required to update and revise the documents every four years.

The 2023 revisions to the model policy and training, which are presently in effect, include an expansion of the definition of gender diversity, the addition of a new section on bystander intervention and the incorporation of scenarios regarding sexual harassment in the remote workplace.

Revised Model Sexual Harassment Prevention Policy

Employers are not required to use the model policy, but their policy must meet the minimum standards set forth in New York Labor Law Section 201-g:

  1. prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;

  2. provide examples of prohibited conduct that would constitute unlawful sexual harassment;

  3. include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;

  4. include a complaint form;

  5. include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;

  6. inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;

  7. clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and

  8. clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

Notedly, the new model policy:

  • Addresses gender diversity, including adding definitions of common gender identities on the "gender spectrum" (cisgender, transgender and nonbinary). The policy emphasizes that sexual harassment is gender-based discrimination and includes discrimination based on sex stereotyping, gender expression and perceived identity, as well as treating employees differently because of their gender.

  • Explains that under the New York State Human Rights Law, harassment does not need to be "severe or pervasive" in order to be illegal. Instead, harassment turns on whether a covered individual is subjected to inferior terms, conditions or privileges of employment. The model policy acknowledges that "petty slights" or "trivial inconveniences" do not constitute harassment. Whether harassing conduct is considered "petty" or "trivial" is viewed from the standpoint of a reasonable victim of discrimination with the same protected characteristics.

  • States that the impact of the harassing behavior is what matters rather than the intent. Therefore, not intending to harass is not a defense.

  • Includes updated examples of sexual harassment and discrimination. These examples highlight (1) ways harassment can occur in the remote workplace, such as offensive materials visible in the background during a virtual meeting, (2) harassment based on gender identity or gender expression, including asking individuals to take on traditionally gendered roles, and (3) hostile actions, including intentional misuse of preferred pronouns and creating different expectations for individuals based on their perceived identities.

  • Expands the retaliation section by including new examples of retaliatory conduct such as labeling an employee as "difficult" and excluding them from projects to avoid "drama," passing over an individual for a promotion, or disparaging someone on social media.

  • Adds a "Bystander Intervention" section encouraging any employee who witnesses harassment to report it and mandating that supervisors or managers who are bystanders to harassment report it. The section also provides guidance on five standard methods of bystander intervention.

  • Requires that employers reference the state's confidential hotline for the reporting complaints of workplace sexual harassment, which launched in July 2022.

The model policy indicates that "[e]mployers are encouraged to tailor this policy to their individual needs, though as a minimum standard, no section in this policy should be omitted." It remains to be seen whether the state will take the position that sexual harassment prevention policies must include all of the sections contained in the updated model policy or simply address the substance contained under those headings.

The original 2018 model policy focused on preventing sexual harassment and gender discrimination and referenced the prohibition against discrimination for all protected classes only in a footnote. The revised model policy, however, references all protected classes in the body of the policy and states that (1) the "methods for reporting and investigating discrimination based on other protected identities are the same" and (2) the prevention policies outlined "should be considered applicable to all protected classes." The state's inclusion of these provisions is notable given that New York Labor Law 201-g itself does not specifically incorporate requirements for addressing discrimination, harassment or retaliation other than that constituting or related to sexual harassment.

New York State's Revised Model Sexual Harassment Prevention Training Materials

The DOL also revised its model training materials. As a reminder, all New York State employers are required under Labor Law § 201-g to provide employees with sexual harassment prevention training annually. Only employees who work or will work in New York State need to be trained. However, an individual based in another state who also works in New York State for a portion of their working time must participate in training that complies with New York law. During the training, employers must also provide employees a notice containing the employer's sexual harassment prevention policy and a copy of the information presented at the training.

The revisions to the model Sexual Harassment Training Script and Slides reflect the primary changes to the model policy and include:

  • The provision of a content warning in the training script stating, "This subject matter can be sensitive or difficult for some employees, including those that might have experienced harassment, discrimination or violence in the past. If the training is being facilitated in a group (whether in person or virtually), trainers should make clear to those attending that anyone needing to step out briefly on behalf of their mental health may do so. All employees do need to complete the training. The employee is allowed to complete the training at a later time if need be."

  • A slide on gender identity, with definitions as in the model policy.

  • Explaining that harassing behavior only needs to rise above a "petty slight" or "trivial inconvenience" to be unlawful; that harassing behavior is any behavior in which an individual is "treated worse" because of their gender (perceived or actual), sexual orientation or gender expression; and noting that intent does not affect whether conduct is harassment.

  • Providing that a hostile work environment can exist in the remote workplace.

  • Describing the five methods of bystander intervention.

  • Updating case scenarios to include remote work and harassment based on gender identity.

  • Noting that a complaint of sexual harassment must be filed with the NYS Division of Human Rights within three years of the alleged harassment, and including the state's sexual harassment hotline.

The state created a new video, but the video itself is not considered interactive, so employers are required to supplement watching the video as their training with an additional training element. The training video can be paired with a sexual harassment prevention training assessment form, accessible on the DOL's "Combating Sexual Harassment in the Workplace" webpage, to fulfill the interactive element. There are also updated FAQs on various questions about implementation of the policy and training.

In good news for employers operating in New York City, the state has specifically advised that employers can comply with both the New York State and New York City training requirements by using the New York City Commission on Human Rights' online training, currently available here.

Implications for Employers

Employers should review and update their existing sexual harassment prevention policies and training materials with the 2023 revisions in mind, and continue to comply with all policy distribution and training requirements. As a reminder, employers are required to provide the sexual harassment prevention notice, policy and training materials in both English and, as detailed in the FAQs, in select other languages for employees whose identified primary language is not English.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.