An updated model sexual harassment prevention policy issued by New York State offers improvements and detractions relative to the original 2018 version, adds new information, and incorporates more recent changes in the law. Among the greatest improvements are the increase in scope and elimination of footnotes. Among the greatest detractions is the length – which has now ballooned from seven pages to eleven. The largest category of new information is a new section on bystander intervention.
Correcting Earlier Flaws
The new model policy partially corrects one of the most notable flaws in the original, which was a narrow focus on sexual harassment prevention. While the earlier approach was consistent with the state law mandate of what needed to be addressed in a written policy, practically speaking it meant that many employers only issued policies prohibiting sexual harassment, and had little or no policies to address other forms of unlawful harassment. The new model policy recognizes that the law prohibits harassment based not only on sex, but on a range of protected characteristics and the intersectionality of multiple characteristics, and directs that all such behavior should be reported in a manner consistent with the policy.
Footnotes really do not belong in an employee handbook policy, and the state’s new model policy shifts a former footnoted reference to independent contractors, gig workers and the like into the body of the policy. It is no longer necessary to read the fine print for clarification that those individuals are also covered.
While admirably comprehensive, the policy really needed to be shortened, not lengthened by 50 percent. The likelihood of most employees reading what the model policy has become is slim at best. While redundant of the content that follows, the policy tries to cure for that with a seven-point summary on pages two to three. The state’s training mandate also helps in that it ensures employees will be informed annually of all the key points contained in the policy. But really, an editing pen would have been useful.
Providing New Information
The additional length largely results from new material in this version of the model policy. There is an entirely new section on bystander intervention and the ways in which employees can support each other when they observe harassing behavior. Other additions include:
- specific examples of how harassment can occur at the intersectionality of multiple protected characteristics;
- an explanation of gender diversity and the definitions of cisgender, transgender and non-binary individuals;
- emphasis that the intent of behavior does not neutralize a harassment claim, as the focus is on how behaviors impact someone else;
- clarification that harassment also can occur in a remote environment, including through remarks made or visual images displayed over virtual platforms; and
- a requirement that supervisors and managers accommodate the needs of those who have experienced workplace harassment to ensure a safe, supportive workplace.
Keeping Up with Changes in the Law
Finally, the model policy is updated to incorporate changes to the law since it was first drafted in 2018. Those changes include clarifying that harassment need not be severe or pervasive to be illegal, and adding information about the state’s sexual harassment hotline.
Employers Have Options
Now is the time for employers that have not been updating their own harassment prevention policies to incorporate the more recent changes in the law. Beyond those legal changes, employers can, but are not required to, adopt the model policy in its totality. Alternatively, employers can maintain their own policies, provided they include eight key elements:
- a prohibition against sexual harassment consistent with the state’s guidance;
- examples of prohibited conduct;
- information about the applicable federal, state and local legal standards and available remedies;
- reference to a complaint form;
- an investigation procedure that ensures due process for all parties;
- information on where employees can go externally with their complaints, and their options for redress;
- a clear statement that sexual harassment is a form of employee misconduct, subject to sanctions for those who engage in it or supervisors who knowingly allow it to continue; and
- a clear statement against retaliation.
In addition, the model policy states that employers can tailor the model to their individual needs, but at a minimum no section in the model policy should be omitted. Those sections outline the purpose and goals of the policy, summarize the key provisions, define sexual harassment, define retaliation, address reporting of sexual harassment complaints, describe supervisors’ responsibilities, address bystander intervention, describe the complaint handling and investigation process, and reference legal protections and external remedies. Employers should check whether their own policies cover all those subjects and, if not, consult with legal counsel on how best to update their policies to meet the new legal standard.
By Tracey I. Levy