Consistent with its obligation to revisit the sexual harassment resources it publishes every four years, New York State recently finalized updates to its Model Sexual Harassment Policy (the "Model Policy") and Model Sexual Harassment Prevention Training (the "Model Training"), replacing previous guidance issued in 2018. As a practical matter, New York employers should ensure that their policies and trainings align with the newly-issued guidance. But wise employers should also consider the behaviors these changes are designed to address, and the potential for related claims as the public understanding of sexual harassment evolves. Below are six concepts to account for when revising existing sexual harassment policies and training materials, and to consider when monitoring the workplace for problematic conduct.
An Examination of Harassment in Remote Work Settings
The Model Policy and Model Training now detail the ways in which harassment may occur when employees work remotely, in a clear effort to address a pandemic-prompted shift toward teleworking arrangements. New scenarios in the Model Training explore sexual harassment based on text messages sent from personal devices and comments made during Zoom calls, where visual access to an employee's formerly private spaces can invite public commentary. The Model Policy notes that sexual harassment can occur when employees are using virtual platforms or messaging apps from home, and can even result from the presence of sexual or discriminatory items visible in an employee's home office during a virtual meeting.
An Awareness of Intersectionality
The model guidance also seeks to highlight concepts of intersectionality, reflecting an awareness that an individual's experience with sexual harassment or gender-based discrimination may differ based on his or her race, immigration status, or other personal characteristic. By way of example, the Model Training includes a mock scenario in which a Black female employee is treated differently than her white female and Black male counterparts, with belittling comments and remarks about her appearance reflecting harassment based on her intersecting race and gender identity. The Model Policy encourages employees to consider how their behaviors may impact individuals with differing experiences, in an effort to forestall harassing conduct.
An Exploration of Gender Diversity and Sex Stereotyping
In defining sexual harassment at the outset, the Model Policy now emphasizes gender diversity, and includes a detailed description of gender identity. In no uncertain terms, the revised Policy indicates that "respecting an individual's gender identity is a necessary first step in establishing a safe workplace." It also now cites "the intentional misuse of an individual's preferred pronouns" and comments about gender expression as explicit examples of conduct that may constitute sexual harassment.
The Model Policy and Model Training also make clear that stereotyping based on sex or gender is potential grounds for a discrimination claim. The Model Training newly references as examples of prohibited sex-based stereotyping (A) the assignment of certain tasks to men based on their stereotypical strength, and (B) the assumption that a female employee has children based on a woman's presumed role as a mother.
An Expanded Discussion of Retaliation
The revised Model Policy and Model Training both engage in a more in-depth treatment of conduct that may constitute prohibited retaliation for the reporting of sexual harassment complaints. The guidance now makes clear that retaliatory conduct may occur outside the workplace and need not necessarily be job-related. In offering new examples where none before existed, the Model Policy notes that retaliation might include, among other things, publishing an employee's personnel files, excluding an individual from assignments due to a perception that he or she is "difficult," threatening physical violence in non-work settings, or making negative comments about an individual via personal social media.
An Emphasis on Bystander Intervention and Reporting
The updated Model Policy now contains an entirely new section respecting "bystander intervention," in which it encourages employees to report any harassment they witness. The Policy also offers various methods of intervention that a bystander might use to assist the subject of discrimination or harassment, including (A) taking notes on the harassment for a future investigation, (B) confronting the harasser directly about the inappropriate behavior, or (C) asking a third party to intervene. The Model Training walks participants through what those differing methods of intervention may look like in a given scenario.
The revised guidance also makes a clear distinction about the obligations of supervisory personnel, noting that they have an affirmative responsibility to report harassing behavior to their employer. The Model Policy explicitly indicates that supervisors must report when they witness such conduct and must not wait until they receive a complaint from the affected employee. The Model Training features a scenario with a supervisor who tells a victim of harassment that she should simply ignore the behavior, and notes that this supervisor has failed to properly report a claim of harassment and may herself be subject to a claim of gender-based discrimination.
An Acknowledgment of Difficult Subject Matter
For the first time, the Model Policy and Model Training encourage employers and employees alike to consider that sexual harassment may be a difficult subject to discuss. At the outset, the Model Training instructs employers that the topic of sexual harassment may be fraught for certain employees, including those who may have previously experienced discrimination and harassment. The Training encourages trainers to inform audience members that they may step out of a group training for mental health reasons, and ultimately complete the training at a later date if necessary. The Model Policy also encourages employers to bring this sensitivity to investigations of sexual harassment complaints. It indicates that supervisors should be aware of the impact that both harassing conduct and the subsequent investigation—which can be "intimidating, uncomfortable and re-traumatizing"—may have on the individuals affected.
The concepts highlighted here reflect only some of the recent updates to the Model Policy and Model Training. Employers with questions regarding the recent changes—or their impact in the workplace—are encouraged to contact the authors of this article or another attorney in Venable's Labor and Employment Group.