In April 2018, New York state enacted an anti-sexual harassment law that, among other things (1) requires all employers in New York, regardless of size, to implement anti-sexual harassment policies and to conduct annual anti-harassment training that complies with minimum standards set forth in the statute (§201-g of the Labor Law); (2) bans pre-dispute agreements requiring arbitration of sexual harassment claims “except where inconsistent with federal law” (C.P.L.R. Section 7515); and (3) requires confidentiality provisions in settlement agreements resolving sexual harassment claims to be at the “complainant’s preference” and sets forth procedural requirements for compliance with the statute’s requirement (C.P.L.R. §5003-b). Six months later, the New York State Department of Labor issued guidance, including model documents and Frequently Asked Questions (FAQs), to assist employers in complying with the new statutory requirements. See https://www.ny.gov/programs/combating-sexual-harassment-workplace. This column addresses the likely impact of these requirements and prohibitions on employers in New York.

Anti-Sexual Harassment Policies

Many employers have long implemented comprehensive policies prohibiting employment discrimination, including discrimination on the basis of sex, race, religion, national origin, age and other protected classifications, harassment (based on sex and other protected classifications), and retaliation. These policies typically define prohibited conduct, include examples of prohibited conduct, set forth a complaint procedure, and prohibit retaliation against individuals who complain of discrimination or who assist in any investigation of discrimination. The model policy addresses only sexual harassment. Employers should not replace their existing policies that contain broader prohibitions. In theory, employers could adopt the model policy for sexual harassment as an additive to the employer’s broader policy dealing with all forms of discrimination. Many employers, understandably, have not implemented the model policy, but, rather, have revised their existing policies to ensure that they comply with the minimum standards set forth in the state statute, using the model policy as a compliance tool. For example, the statute requires policies to “include a complaint form” and to “inform employees of their rights of redress and all available forums,” but many policies did not include either. Now employers will add those features. In addition, some employers have adopted language from the model policy to ensure that the language used in their policies is consistent with the language used in the model policy. For example, the model policy uses the term “target” rather than “victim” to refer to individuals subjected to harassment, and, rather than “complaints” of harassment, the model policy uses “reports.”

Anti-Sexual Harassment Training