From Remote Work to Bystander Intervention: A Closer Look at New York's Revised Sexual Harassment Policy

As the #MeToo movement continues to spark conversations on workplace harassment, the New York State Department of Labor (DOL) has stepped up to the plate with a powerful new tool: an updated Sexual Harassment Model Policy. Released this April, the policy reflects a heightened awareness of the pervasive nature of this issue, and seeks to empower both employers and employees with the knowledge and resources they need to take action. With several key revisions in place, it is more important than ever to understand the implications of these changes and what they mean for workplace harassment prevention and response. In this article, we'll delve into the details and shed light on how this policy can help pave the way for a safer and more equitable workplace for all.

Definition of sexual harassment expanded: The updated policy now emphasizes that sexual harassment is a form of workplace discrimination that can be affected by other identities beyond gender. It provides definitions for cisgender, transgender, and non-binary persons, making it clear that harassment can occur in various forms beyond the traditional male/female dynamic.

Broader definition of who is covered by the policy: The new policy extends protection to individuals who are not directly employed by a company, such as independent contractors, gig workers, and temporary workers. This change acknowledges that harassment can occur in non-traditional work arrangements.

Additional language clarifying complaint procedures: Although employees must have access to a complaint form, the use of the form is not required if an employee would rather make a complaint verbally or by email. Employees are also encouraged, but not required, to report harassment to their manager or employer and may instead report harassment directly to a government agency such as the New York States Division of Human Rights and/or the United States Equal Employment Opportunity Commission.

Inclusion of biases and identities beyond gender: The new policy recognizes that sexual harassment can be impacted by biases and identities beyond an individual's gender. For example, an individual with past experiences as a survivor of domestic or sexual violence may have different perceptions of workplace harassment. This language encourages employers to be more mindful of the unique experiences of their employees.

Expansion of harassment to remote work: The new policy acknowledges that sexual harassment can occur when employees work remotely, through virtual meeting platforms, messaging apps, and on personal cell phones. This change reflects the shift towards more flexible work arrangements and highlights the importance of addressing harassment in all workplace settings.

Examples of unlawful retaliation: The new policy provides examples of what constitutes unlawful retaliation, including retaliation that is not job-related. These examples include publicly releasing personnel files; undermining an individual’s immigration status; moving an individual’s desk to a less desirable office location, etc. This change helps to ensure that victims are protected from retaliation and that employers are held accountable for any retaliatory actions.

Bystander intervention guidance: The updated policy includes a new section on bystander intervention, which outlines five standard methods employees can use to respond to incidents of harassment in the workplace. These include : distract the harasser, ask a third party to help, record the incident for evidence, check in with the victim afterwards, or confront the harasser and name the behavior as inappropriate. The policy emphasizes that physical violence is never an appropriate response when confronting harassment.

Training requirements: This is not new but nonetheless worth noting. Every employer in New York State is required to provide employees with sexual harassment prevention training. The sexual harassment training must be interactive and cover various topics such as what constitutes unlawful sexual harassment, federal and state statutory provisions, employees' rights of redress, and supervisors' additional responsibilities. Model training videos available at : https://www.ny.gov/combating-sexual-harassment-workplace/sexual-harassment-prevention-model-policy-and-training 

Overall, the updates to the New York State Sexual Harassment Model Policy reflect a commitment to more expansive and inclusive protections for employees. These updates provide employers with a roadmap for compliance and a framework for addressing workplace harassment in all its forms. Employers should take note of the key revisions to New York's Sexual Harassment Model Policy and ensure that their policies are consistent with applicable guidelines and laws.

Note To Employers : A template that meet the new requirements of the DOL policy is available to download at https://www.ny.gov/sites/default/files/2023-01/SexualHarassmentModelPolicy2022Proposed.pdf 

ASR