Overview of Sexual Harassment Laws in NYS and NYC
During the past year, the news has been dominated by stories about high-profile sexual harassment cases.
But the truth is, most sexual harassment incidents aren’t widely known or reported. Incidents can occur quietly and discretely, and sometimes in subtle ways, and often go unreported. And yet the damage they cause to their victims can be just as devastating as the ones you hear about.
In an attempt to create a workplace for everyone that’s free from sexual harassment, 32 states – including New York, and even New York City – have introduced more than 125 pieces of legislation in 2018 toward sexual harassment prevention.
It’s important to understand how these laws may directly impact you – whether you’re an HR professional for a mid-sized technology firm in Buffalo, or the owner of a dry-cleaning shop in Manhattan.
This guide reviews many of the new provisions under recent sexual harassment prevention legislation in New York state and New York City, explains employer responsibilities, looks at the potential costs associated with a sexual harassment claim, and offers best practices for complying with provisions of the applicable laws.
Sexual harassment: The basics
Sexual harassment is a form of discrimination. But, what’s considered to be sexual harassment? It’s a broad-ranging and very fact-specific category that can include:
- Unwanted verbal or physical sexual advances
- Sexually explicit statements
- Sexually oriented gestures, noises, remarks, jokes, or comments
- Remarks the recipient feels are offensive or objectionable
- Sexual or discriminatory displays or publications anywhere in the workplace
- Other harassing or hostile conduct that’s directed at recipients because of their sex
While sexual harassment can involve overt, easily recognized acts (such as inappropriate touching or telling crude jokes), it can be subtle, too – such as interfering with an individual’s ability to perform their job because of their gender.
The person who is responsible for sexual harassment in your workplace can be anyone, including a supervisor, subordinate, employee, intern, independent contractor, temporary or contract worker, vendor, client, visitor, or even a customer. As a covered employer, that means you need to be concerned about the behavior of everyone on your property at all times.
Basics of New York state laws
On April 12, 2018, New York state enacted several legislative proposals as part of the state budget, designed to help prevent and address workplace harassment. The legislation features several primary components:
1) Sexual harassment protection for non-employees
All employers in New York state – regardless of the number of employees – must provide a working environment that prohibits sexual harassment and take immediate action to investigate all reports of sexual harassment.
Protection from sexual harassment in the workplace is expanded under a new provision, effective April 12 to non-employees, such as independent contractors, freelancers, temporary workers, vendors, consultants, and individuals employed by companies that contracted to provide services to your company (such as the overnight cleaning crew or the copier repair technician).
2) Policy adoption and distribution
Beginning Oct. 9, 2018, New York state employers must adopt and distribute the model sexual harassment prevention policy developed by the state to all employees working some or all of their time in New York state. You may opt to create your own version instead of using the model if it meets or exceeds the state’s minimum standards. You can find the minimum policy standards at the New York state website page, “Combatting Sexual Harassment in the Workplace.”
Employers are also required to adopt an internal complaint form. Again, the state has provided a model complaint form as part of their final guidance found on this website, but employers are free to create their own if it meets the minimum standards. And while employers do not need to include the form in the policy, they must reference the location of where employees can find the form.
Although you are strongly encouraged by the state to post the policy in all company locations, all employers must distribute a copy of the new policy in writing to all employees. You may distribute the policy to employees electronically, including via email, instead of distributing a printed version. But, you’ll need to ensure all employees can access the policy on a company-provided computer during work hours, and can print a copy for their records. Newly hired employees will need to receive a copy of the policy prior to commencing work.
And while you’re not required to obtain employee signatures as proof they’ve read the policy, doing so is a good idea – even if it requires extra effort.
You must provide annual interactive sexual harassment prevention training for every employee – including part-time, seasonal and temporary employees. Each employee must complete the initial training session by Oct. 9, 2019. New employees should be trained as soon as possible.
To assist employers in their compliance efforts, the New York State Department of Labor (NYSDOL) and New York State Division of Human Rights (NYSDHR) have provided model training you can use to comply with the law.
But, if you choose to develop your own training, the final guidance indicates employers must include the following information:
- Be interactive
- An explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
- Examples of conduct that would constitute unlawful sexual harassment
- Concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment
- Concerning employees’ rights of redress and all available forums for adjudicating complaints
- Addressing conduct by supervisors and any additional responsibilities for such supervisors (note that all employees must be trained on this content, not just supervisors).
- Employees must be trained in the language they speak but only where the state has released a model training in that language. The state will soon release the model training in at least eight (8) other languages.
- And while you’re not required to keep records of the training or obtain employee signatures as proof they’ve attended training, it is a good idea – even if it requires extra effort.
Basics of New York City Laws
In May 2018, the Stop Sexual Harassment in NYC Act was signed into law. This comprehensive legislative package expands the New York City Human Rights Law, and introduces new requirements with the goal of addressing and preventing sexual harassment in the workplace.
The law now protects all employees from gender-based discrimination, including employees working for small businesses of any size.
The legislation also requires employers with 15 or more employees (including independent contractors) to conduct annual participatory anti-sexual harassment training for all employees and independent contractors. Effective April 1, 2019, employers have one year to implement the initial training; newly hired employees must be trained within 90 days. Covered employers are required to train employees and independent contractors who work more than 80 hours in a calendar year and work for at least 90 days.
The New York City Commission on Human Rights will develop a model online interactive training module you can use to help meet the requirements. But, you’ll need to supplement this module by including your organization’s internal process for reporting sexual harassment claims. Covered employers may utilize the model training or develop their own training, but it must meet several requirements under the legislation.
Training must include the following elements:
- Explanation that sexual harassment constitutes unlawful discrimination under local law, as well as state and federal law
- Description of what sexual harassment entails (with examples)
- Details about your internal complaint process for sexual harassment claims
- Review of the complaint process available through local, state, and federal resources, including their contact information
- Statement that retaliation is illegal (with examples of retaliation)
- Information about bystander intervention
- Additional training for supervisors and managers reviewing their responsibilities in preventing sexual harassment and retaliation
You must maintain a paper or electronic record of all trainings and signed acknowledgements from attendees. These records must be retained for at least three years.
Ensuring Your Employees Know Their Rights
Starting Sept. 6, 2018, covered employers were required to display the “Stop Sexual Harassment Notice” in employee breakrooms or other common area within the workplace accessible to workers and applicants. The poster must be posted in both English and Spanish.
Additionally, you need to provide new employees with the required “Stop Sexual Harassment Fact Sheet” about anti-sexual harassment rights and responsibilities upon hire. You may either include it in your employee handbook, or distribute it as a separate document.
You can obtain these documents on the NYC Commission on Human Rights website. The site also contains additional resources about sexual harassment prevention, including examples of behavior that may be considered sexual harassment under the law, as well as details about the city’s sexual harassment complaint process.
Longer Time to Report Claims
Effective immediately, employees now have up to three years after the alleged act of harassment occurs to report claims of gender-based harassment to the NYC Commission on Human Rights.
Previously, employees had only one year to file a claim under the New York City Human Rights Law.
The costs of sexual harassment
It’s possible for your company to be legally liable if sexual harassment occurs in your workplace, and you knew (or should have known) about it and failed to immediately take appropriate corrective action.
However, there are multiple costs – both obvious and hidden – of having a sexual harassment complaint against your business, even if your company isn’t at fault. For example:
Reduced productivity: Every minute you’re involved with dealing with sexual harassment claims against your company means less time to focus on your daily responsibilities. Your company can suffer in the process, especially if you’re a small business owner.
Additionally, other members of your company may be forced to be away from work for court proceedings, investigations, or depositions. Human resource departments may be burdened by internal investigations that clog the department’s normal business cycles. For example, it may take longer to interview, approve, and onboard employment candidates.
In short, sexual harassment claims can eventually interfere with productivity throughout your company – from the receptionist’s desk to the CEO office.
Legal fees: Attorneys can devote dozens to hundreds of billable hours defending your business, which will dent your company’s profitability. These fees alone can place smaller businesses in jeopardy, since they often lack the deep financial resources necessary to withstand unexpected spikes in expenses.
Some estimates place the average legal costs for out-of-court settlements between $75,000- $125,000. Cases that proceed to a jury trial can result in much higher legal costs and there is, of course, the potential for monetary damages to be awarded to claimants in the case of a successful claim of unlawful harassment.
Higher turnover: The typical harassment claim can take nearly 275 days to be settled, according to the Hiscox Guide to Employee Lawsuits (2015). During this time, morale at your workplace can suffer, and you may see an uptick in turnover as discontented or worried employees seek a happier, safer, more stable situation.
Damaged reputation: With the current talent crisis, it’s difficult enough to attract top workers. Heavily recruited individuals usually avoid companies with a perceived culture of sexual harassment – even if that reputation isn’t justified.
A single harassment complaint about your business can spread rapidly through social media channels or word-of-mouth, cause lasting damage to your company’s image, and scare away both prospective employees and customers.
All of this underscores why it’s essential for your company to stay on top of all your responsibilities to prevent and address sexual harassment in the workplace, and do whatever you can to promote an atmosphere that’s free from sexual harassment.
Disclaimer: This content is for educational purposes only, is not intended to provide specific legal advice, and should not be used as a substitute for the legal advice of a qualified attorney in your state. The information in this article may not reflect the most current legal developments, may be changed without notice and is not guaranteed to be complete, correct or up-to-date.