CLIENT ALERT - Sexual Harassment in the Workplace

By Paul F. Millus

On April 11, 2023, the New York State Department of Labor (DOL) issued its updated model policy as it pertains to sexual harassment in the workplace. New York became one of the first states in 2018 to pass legislation requiring all employers to maintain a written sexual harassment policy and provide annual anti-harassment training to employees. The statute also directed the DOL to issue a model sexual harassment policy which all employers were required to meet or exceed. The policy which can be found at www.ny.gov/combating-sexual-harassment-workplace/sexual-harassment-prevention-model-policy-and-training includes definitions of these typical designations.

Employers should know that the updated policy includes several major changes increasing the emphasis on gender discrimination in the workplace with a focus on harassment and discrimination based on gender identity, gender expression and sexual orientation. The major changes include: (i) detailed explanations concerning the nuanced nature of the gender spectrum noting three particular ways that employees identify themselves: cisgender, transgender, and nonbinary, including definitions of those terms; (ii) imposing liability for remote workplace claims; and (iii) it adds a new section on “bystander intervention” which guides employees on various methods of intervention if they witness behavior they could be considered harassment.

An important reminder - there is a distinct difference between a sexual harassment claim brought under federal law and one brought under state law; specifically, under federal law, the harassment would need to be “severe or pervasive” to be unlawful. New York state law removes that description, such that, New York law applies to any harassing behavior that rises above “petty slights or trivial inconveniences” and, whether the conduct is considered petty or trivial will be reviewed from a “reasonable victim of discrimination with the same protected characteristics.” Finally, under New York law, unlike federal law, lack of intent to harass is not a defense.

All New York employers are urged to seek out legal guidance relating to their obligations in the workplace under New York law and ensure that their employment handbooks properly reflect the status of the law in the state of New York. Employers should also be aware that the distinctions between New York state law and federal law are significant. Where a particular case could be dismissed on summary judgment under federal law standards, that case is unlikely to be treated in the same manner under New York law, thus raising the possibility of the only way to resolve the issue is either settlement or at trial.