New York State and New York City Sexual Harassment Prevention Laws
As the national conversation on the #MeToo and #TimesUp movements continues, New York and New York City have enacted aggressive legal measures meant to combat sexual harassment in the workplace and to increase transparency around the issue.
The legislative and regulatory changes occurred in quick succession in 2018, and compliance deadlines for New York City employers continue through 2020.
Fair and Safe Workplaces
New York employers need to ensure a fair and safe workplace under the broad coverage of the New York State Human Rights Law and the local counterpart, the New York City Human Rights Law. The laws protect all individuals based on gender, which includes sexual harassment in the workplace. The laws' collective breadth has been expanded to include nonemployees and contractors (New York) and interns (New York City). Many statutory provisions apply to all New York employers, regardless of size.
For example, New York requires mandatory training for all New York employers. Supervisor training on the prevention of discrimination and retaliation has always been a best practice for employers that are trying to ensure a fair and safe workplace for all employees. However, New York and New York City are also focusing on sexual harassment prevention training for rank-and-file employees - a major expansion of existing training requirements in other states.
- Stay current on applicable federal, New York and New York City compliance requirements with respect to sexual harassment prevention.
- Remember that simply adhering to the state's model may not ensure full compliance; for example, New York City has additional training requirements.
- Prepare an interactive and participatory program using the New York Model Sexual Harassment Prevention Training.
- Offer employees a method to file a complaint of harassment by using the New York Model Sexual Harassment Complaint Form.
- Consult overviews of New York compliance requirements regarding harassment prevention and training and development.
Communicating legal requirements in ways other than training, consistently and often, can promote a tolerant and diverse workplace culture that is free from discrimination, harassment and retaliation.
New York requires that an employer adopt a sexual harassment prevention policy and that the policy be included with new hire paperwork and/or in an orientation package. Employers should also routinely remind workers of the importance of following the policy in order to ensure a harassment-free workplace.
In addition, New York City employers must:
- Provide the New York City Stop Sexual Harassment Act Fact Sheet to employees; and
- Post the New York City Stop Sexual Harassment Act Poster.
Communicating with new hires and with the workforce through policy manuals, regular feedback sessions and employee handbooks improves adequate implementation of the compliance requirements.
When crafting New York-specific handbook statements and policies, please refer to:
- Sexual Harassment Handbook Statement: New York City, New York;
- Employee Harassment Complaint Form Handbook Statement: New York; and
- New York Model Sexual Harassment Policy.
Transparency or Confidentiality?
Nondisclosure and confidentiality agreements have often been used in the resolution of allegations or claims of sexual harassment. However, many regulators view the practice as contributing to a culture of secrecy with respect to sexual harassment in the workplace.
The federal government has addressed the issue by prohibiting deductions (as ordinary business expenses) for sexual harassment settlements or payments subject to nondisclosure agreements. In addition, New York state law prohibits employers from including confidentiality provisions in sexual harassment settlements or agreements, unless it is done at complainant's preference.
A review of arbitration agreements may also be in order for affected employers: New York has banned employers from requiring the mandatory arbitration of sexual harassment allegations or claims. However, because state regulation of arbitration may be in violation of the Federal Arbitration Act, employers should remain current with legal developments as state regulations of these types of agreements are tested in court.
The following resources inform decision-making with respect to transparency and confidentiality:
- Arbitration: Federal;
- Employee Communications: New York; and
- Tax Reform Law - Comparison of Pre- and Post-Reform Provisions Affecting Employers.