The 2019 New York State Budget puts in place the nation’s strongest, most comprehensive sexual harassment law. It holds employers accountable for sexual misconduct in the workplace, and specifically requires employers to adopt a sexual harassment prevention policy. To help employers meet these new demands, the New York State government has put together a model policy that can be used as a standard to protect workers’ rights across the state.

In this blog post, I will discuss the 2019 New York State Budget, which requires all employers to adopt a sexual harassment prevention policy. I will review the model policies and training guidance provided by the state. I will also address options available to employees whose employers don’t create or enforce the mandatory policies.

New York State Law Requires Sexual Harassment Prevention Policies for All Employers

Whether you work on Wall Street, in a brand new startup, or for a small family store, you deserve to be free from sexual harassment in the workplace. Starting in 2019, the New York State government requires every employer — matter how small — to adopt a formal sexual harassment policy to protect its workers. The policy must:

• Explicitly prohibit sexual harassment
• Give examples of prohibited sexual conduct
• Describe federal and state anti-discrimination laws, and say that local ordinances may also apply
• Contain a written complaint form
• Describe a timely and confidential investigation procedure designed to give due process to everyone involved
• Notify employees of their rights to file complaints internally, with the Division of Human Rights, and with the Equal Employment Opportunity Commission
• Clearly state that sexual harassment is employee misconduct subject to discipline and enforcement
• Include discipline of supervisors and managers who allow sexual harassment to continue
• Prohibit retaliation with the threat of discipline

Model Sexual Harassment Prevention Policy Helps Employers Do the Right Thing

In addition to describing what employers are required to do, the New York State government website provides a model sexual harassment prevention policy that makes it easy for employers to comply with the law. The policy starts by giving a broad definition of sexual harassment, in line with the New York State Human Rights Law:

“Sexual harassment includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity and the status of being transgender.”

It includes bans on sexual conduct that:

• Interferes with a person’s work
• Creates a hostile, intimidating, or offensive work environment
• Conditions employment on the response to sexual conduct
• Basis employment decisions on the response to sexual conduct

The policy then provides concrete examples of each type of sexual harassment. It notes that, while not all sexual misconduct creates the basis for a lawsuit or DHR complaint, even a single incident can be addressed internally under the policy. It also addresses many frequently asked questions like:

• Can an employee be sexually harassed by another employee of the same gender?
• Does sexual harassment include behavior of independent contractors, superiors, or clients?
• What if sexual harassment happens outside the workplace.

Model Policy Focuses on Preventing Retaliation

The model policy also dedicates an entire section to retaliation. Under the New York State Human Rights Act and Title VII of the federal civil rights act, retaliating against someone because they filed a sexual harassment complaint or participated in an investigation is illegal. The model policy makes it clear that anyone — even a supervisor or manager — who retaliates against someone filing a sexual harassment complaint may be disciplined or even fired.

State Policy Emphasizes Witness Reporting

Stopping sexual harassment isn’t just about he said/she said. The model policy addresses the important role of witnesses in sexual harassment prevention. It encourages witnesses to file written complaints, and ensures the investigation will be confidential (to the extent possible) and free from retaliation. That way workers who see something can feel confident in saying something.

Meeting Mandatory Training Requirements

The New York State Human Rights Act also now requires all employers to provide sexual harassment prevention training every year. The state website provides guides to what that training should look like, and how it can work. There are also training videos available that meet the minimum training requirements, except they are not interactive. The website provides guidance on how employers can use the videos to meet their obligations under the law.

What to Do if Your Employer Doesn’t Adopt a Sexual Harassment Prevention Policy

State law is only as good as its enforcement. If you feel you have been the victim of sexual harassment and your employer (1) doesn’t have a policy or (2) refuses to enforce it, you may be entitled to file a complaint with the New York State Division of Human Rights or the EEOC.

At Eisenberg & Baum, our New York City-based sexual harassment attorneys know how the new laws have affected your rights, and what you can do if your employer isn’t keeping up with the changes. We will help you negotiate with your employer, file the necessary administrative claims, and represent you in court. Contact us to schedule a consultation.