The New York State Department of Labor (“DOL”) has released its long-awaited updated model sexual harassment prevention policy that addresses issues such as gender identity, remote work, and bystander intervention. As we previously reported, the DOL published proposed changes to the model policy in January of this year, and the updated policy largely mirrors those proposals. These changes arise from 2018 amendments to the New York State Labor Law, which require employers to adopt written sexual harassment prevention policies that meet or exceed the model policy’s requirements. As part of this legislation, the State must review and revise the State’s model policy every four years, which led to the recent updates.

These are the major revisions to the model policy of which employers should be aware:

  • Clearly explaining that, in New York State, sexual harassment does not need to be severe or pervasive to be illegal.
  • Defining sexual harassment as a form of “gender-based” discrimination, and providing an explanation of gender diversity (including definitions of cisgender, transgender and non-binary persons).
  • Including a provision explaining that intent is not a defense under the law, and that impact is what matters in assessing whether the law has been violated. The provision also refers to the New York State Human Rights Law to explain that whether harassing conduct is considered “petty” or “trivial” is from the perspective of a “reasonable victim of discrimination with the same protected characteristics.”
  • Adding provisions making clear that harassing behavior can happen in the remote workplace.
  • Providing an updated, non-exhaustive list of examples of sexual harassment and retaliation across many kinds of careers and industries. Some of the new examples include “Intentional misuse of an individual’s preferred pronouns” and “Creating different expectations for individuals based on their perceived identities.”
  • Including a provision in the section on Supervisory Responsibilities informing supervisors and managers that they should be mindful of the impact investigations into sexual harassment can have on victims, and stating that management must “accommodate the needs of individuals who have experienced harassment to ensure the workplace is safe, supportive and free from retaliation for them during and after any investigation.”
  • Adding a new section on bystander intervention, including an explanation of five standard methods of intervention that can be used if employees witness harassment or discrimination.
  • In the section on Legal Protections and External Remedies, making reference to the state’s confidential hotline for complaints of workplace sexual harassment which, as we previously reported, launched in July 2022.
  • In a new Conclusion section, clarifying that while the focus of the policy is on sexual harassment and gender discrimination, the New York State Human Rights Law protects against discrimination in other protected classes and the policy “should be considered applicable to all protected classes.”

In addition, the DOL updated its model training materials (a script and slide deck) on preventing sexual harassment and discrimination. The revisions to the training materials echo the updated model policy, and some key changes include:

  • Instructing employers in the model training script to provide a content warning to those attending training, 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.”
  • Adding a “What is Gender Identity?” slide using the same language to define gender identity as the model policy.
  • As in the model policy, providing that harassing conduct only needs to rise above the level of a “petty slight” or “trivial inconvenience” to be unlawful and explaining that intent does not affect whether conduct is considered harassment.
  • Including an exercise that asks participants to identify examples of sex stereotyping from a list of scenarios.
  • Providing an overview of the five methods of bystander intervention, which are described in a new section of the model policy.
  • Updating the case scenarios, with new examples covering subjects such as the remote work environment and harassment based on gender identity.

The DOL’s “Combating Sexual Harassment in the Workplace” webpage also includes a new training video and other resources to help employers navigate the updated policy requirements.

Employers should review and update their policy and training materials as soon as possible. We will keep track of further developments on Proskauer’s Law and the Workplace blog.

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Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Jurate Schwartz Jurate Schwartz

Jurate Schwartz is a senior counsel in the Labor & Employment Law Department. She devotes her practice to counseling clients in employment matters, as well as representing employers in federal and state litigations, arbitrations and administrative proceedings.

Jurate’s practice includes providing advice on…

Jurate Schwartz is a senior counsel in the Labor & Employment Law Department. She devotes her practice to counseling clients in employment matters, as well as representing employers in federal and state litigations, arbitrations and administrative proceedings.

Jurate’s practice includes providing advice on compliance with various laws affecting the workplace, including the FMLA, ADEA, Title VII, ADA, FLSA and similar state and local laws. She counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising multi-state employee handbooks under federal, state and local laws. Jurate also advises clients on policy and training issues, including discrimination, harassment, retaliation, wage and hour, employee classification, accomodation of religious beliefs, pregnancy and disability, and leaves of absence, including vacation and paid time off policies, multi-state paid sick and safe leave laws and paid family and medical leave laws. Jurate is experienced in conducting wage-and-hour audits under federal and state wage-hour laws and advising clients on classification issues. She also assists clients in drafting employment, independent contractor, consulting and separation agreements as well as various restrictive covenants.

In addition to counseling, Jurate litigates employment disputes of all types, including claims of employment discrimination, harassment, retaliation, whistleblowing, breach of contract, employment-related torts and claims under federal and state wage-and-hour laws. Jurate also assists clients in matters involving trade secrets and non-competes, as well as nonsolicitation, nondisclosure agreements and other restrictive covenants.

Jurate has been ranked by Chambers USA in Florida since 2012. One client comments, “I am a client with extremely high expectations and Proskauer never ceases to exceed them. Jurate has a perfectionist personality and that fits well with how we operate.”

Jurate’s pro bono work includes service on the HR committee of a not-for-profit organization, the YMCA of South Palm Beach County, Florida, and assisting other not-for-profit organizations with employment matters, as well as her successful representation of an unaccompanied immigrant child in an asylum proceeding referred by the National Center for Refugee & Immigrant Children.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Photo of Arielle E. Kobetz Arielle E. Kobetz

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations…

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations and discipline, leave and accommodation requests, and general employee relations matters. She also counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising employee handbooks under federal, state and local law.

Prior to joining Proskauer, Arielle served as a law clerk at the New York City Human Resources Administration, Employment Law Unit, where she worked on a variety of employment discrimination and internal employee disciplinary issues.

Photo of Hannah Morris Hannah Morris

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers…

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers in counseling matters, such as drafting employment handbooks and researching workplace policies.

Hannah earned her J.D. from the University of Virginia School of Law. While in law school, she served as a Research Assistant for Professor Richard J. Bonnie working on matters related to juvenile justice. Additionally, she interned for the Office of the Public Defender for Arlington County and the City of Falls Church.

Prior to law school, Hannah was a Teach for America Corps member teaching Fourth Grade in Eastern North Carolina.