New York State Updates its Model Harassment Prevention Toolkit

By law enacted in 2018, New York State employers are required to provide all employees with annual sexual harassment training and to adopt a sexual harassment prevention policy that meets or exceeds specified minimum standards. A 2019 amendment to the law requires that the state review and update its model policy and training every four years. In 2022, following public hearing and comment, the New York State Department of Labor (NYSDOL), in consultation with the New York State Division on Human Rights (NYSDHR), significantly revised its model Sexual Harassment Prevention Policy and training materials. In April, the NYSDOL finalized and published these materials.

Updated Model Sexual Harassment Prevention Policy

Employers may use the NYSDOL-published Model Policy or develop their own, provided the policy meets or exceeds specified minimum standards. With respect to the Model Policy, the following are some of the more significant changes and clarifications:

• Consistent with the broad definition of “sexual harassment” in the original and updated Model Policy, the updated Model Policy includes detailed discussion of gender diversity, gender identity, gender expression and the gender spectrum, as well as new examples of harassment related to gender identity and expression. For example, the Model Policy describes the intentional misuse of an individual’s preferred pronouns as harassment.
• The Model Policy incorporates and emphasizes the lower standard for proving unlawful harassment under New York law compared to proving harassment under federal law. Specifically, the complained-of conduct need not be severe or pervasive as required under federal law, although it must rise above “petty slights or trivial inconveniences.” As under federal law, the conduct must be viewed from the perspective of a reasonable person with the same protected characteristics.
• Clarifies that both in-person and remote employees are protected under the law, as are contractors, subcontractors, vendors, consultants, gig workers, temporary workers or anyone else providing services in the workplace.
• Adds a section on bystander intervention, pursuant to which supervisors witnessing sexual harassment are required to report it; other employees who witness harassment are encouraged to report. The Model Policy provides examples of how a bystander can intervene to help the individual being subjected to harassment or discrimination. 
• Adds information about the NYDHR sexual harassment hotline, filing a digital complaint and conciliation services offered by the U.S. Equal Employment Opportunity Commission.
• Updates the statute of limitations for filing a complaint from one year to three.
• Clarifies that the law protects against discrimination and harassment based on any protected class.
• Clarifies that internal complaints may be submitted in any form, including the model form, any other written method (such as an email) or verbally. Complaints may be submitted on behalf of the employee submitting the complaint or another individual.

Updated Training Materials

In addition to updating the Model Policy, the NYSDOL updated its model training materials to align with the revised Model Policy to include new case studies and examples. To meet the required minimum training standards, training must:

• Be interactive.
• Include an explanation of sexual harassment consistent with the Model Policy.
• Include examples of conduct that would constitute unlawful sexual harassment.
• Include information about applicable federal and state laws, remedies available to victims of sexual harassment, and all available forums for adjudicating complaints.
• Include information about the responsibilities of supervisors.

The updated training materials include a new model training script to pair with an updated model training slide deck. As part of the revised training materials, the NYSDOL issued a new training video. To meet the requirement that the training be interactive, however, employers must also ask and respond to employee questions or require feedback from employees about the training. This feedback may be solicited using the provided model fillable PDF form. Finally, during training each year, employers must provide a notice that contains the employer’s sexual harassment prevention policy and a copy of the information presented at the sexual harassment prevention training.

Employers in New York City may use the online training materials published by the New York City Commission on Human Rights, which is broader than and compliant with the New York State requirements.

If you have questions about the updated Model Policy and its impact on your organization, please contact your regular Armstrong Teasdale lawyer or the author below.