N.Y. State Provides Guidance and Resources on Sexual Harassment Prevention Law

The New York State Department of Labor released a finalized version of the state's model Sexual Harassment Policy on April 11, 2023, in a further attempt to strengthen guidance on addressing remote workers, retaliation, and more. Employers in the state will have access to more tools, including training videos, case studies, and educational examples to help them understand and comply with the law.

In March of 2022, employees in New York state gained additional protections regarding harassment and discrimination in the workplace with the signing of a legislative package by Gov. Kathy Hochul that included enacting the following:

• SB 3395 amends the executive law and expands the definition of “employer.”
• AB 2035 establishes a toll-free hotline to report harassment and is designed to put claimants in contact with pro bono attorneys.
• SB 5870 clarifies that release of personnel records under certain circumstances is considered retaliatory action against an employee who has filed a complaint or assisted in any proceeding regarding an alleged act of discrimination under the law.

This is the second time since 2019 that state laws regarding harassment and discrimination have bene amended by the signing of an omnibus bill. In mid-August of 2019, the Human Rights Law, the General Obligations Law, and the Civil Practice Law were amended, and these changes expanded the 2018 revisions to the state’s sexual harassment laws.

The 2019 amendments included new employee and non-employee protections against harassment, retaliation, and discrimination in the workplace, plus impacted other categories of discrimination and harassment beyond sexual harassment.

Employers Impacted by NY Harassment and Discrimination Laws

The term “employer” expanded under the 2022 amendments and now includes all elected officials that serve in the executive, legislative, or judicial branches of government. The purpose of the expanded definition is to extend harassment protections to public employees. Under the previous law that went into effect Feb. 8, 2020, the definition included “all employers within the state, including all state and political subdivisions thereof” regardless of size.

Employees Impacted by NY Harassment and Discrimination Laws

In 2018, the state expanded the application of its sexual harassment laws to non-employees in the workplace. A non-employee includes a contractor, subcontractor, vendor, consultant, or anyone providing services such as equipment repair or cleaning services in a workplace or someone employed by such an individual. The law that took effect Oct. 11, 2019 provides non-employees in the workplace coverage under all New York state harassment laws.

What are the Requirements for NY State Employers Related to Sexual Harassment Prevention?

As of Aug. 12, 2019, employers became responsible for providing a notice to employees containing the employer’s sexual harassment prevention policy and the information presented at the employer’s sexual harassment prevention training program — at the time of hire and at every annual sexual harassment prevention training session.

The toll-free hotline established under the law passed in March 2022 benefits from the notification requirements. The division has to disseminate information about the hotline’s existence to the general public and work with the state Department of Labor to ensure information about the hotline is included in any materials employers are required to post or provide employees regarding sexual harassment.

Employers should keep on top of updated postings or additional information they should include on the hotline in their training.

If employers need examples of what to post, the state has provided a sample Sexual Harassment Prevention Notice on its website that employers can download and fill out before posting. Additionally, the state has posted an updated FAQ section on its website for employees and employers with detailed answers.

The Commissioner of the Division of Human Rights prepared templates of a model sexual harassment prevention policy and the model sexual harassment prevention training program. These are available in English and additional languages, as deemed relevant by the commissioner. When an employee identifies as his or her primary language a language for which a template is not available, the employer must provide an English-language notice.

How Has the Burden of Proof Changed in New York for Harassment Claims?

As of Oct. 11, 2019:

• The standard is that harassment based on any protected characteristic is unlawful provided it “subjects an individual to inferior terms, conditions, or privileges of employment because of the individual’s membership in one of more” protected categories. In addition to race, color, religion, age, and disability — all protected categories under federal law — New York state law also prohibits discrimination based on sexual orientation, gender identity, lawful use of any product or lawful recreational activities when not at work, political activities, prior arrests, and more. By law, employers are provided with an affirmative defense that “that harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”
• There is no implication that an employee must demonstrate the existence of an individual to whom the employee’s treatment must be compared.
• The fact that an individual did not make a harassment claim to their employer will not be determinative of whether an employer can be held responsible. Previously, employers could assert an affirmative defense that reasonable steps were taken to prevent and promptly correct sexual harassment in the workplace and that the aggrieved employee unreasonably failed to take advantage of the employer’s preventative or corrective measures. The 2018 law removed this defense as it related specifically to sexual harassment claims. The new law states that an employer continues to have the ability to demonstrate that appropriate policies and complaint procedures are in place, but these factors alone will not be determinative of an individual’s claim and employers still can be held responsible even if an individual fails to file a claim.

How is the NY State Human Rights Law expanded?

The following provisions of the law are effective Oct. 11, 2019 and expanded employee protections under the New York State Human Rights Law.

• Punitive damages now may be awarded in all employment discrimination cases against private employers. Punitive damages — monetary compensation that exceeds what is required to compensate the injured party for losses — is intended to punish the party found to have engaged in unlawful conduct. The cap on punitive damages under the new law is $10,000.
• The law states the prevailing party shall be awarded reasonable attorneys’ fees by the NYS Division of Human Rights and New York state courts. Previously, such awards were at the division’s and court’s discretion. However, a prevailing complainant/plaintiff does not have to file a motion seeking fees, whereas prevailing defendants/respondents must file a motion and show how the action brought was frivolous.
• Employers are prohibited from including non-disclosure agreements in all claims of harassment and discrimination, an enhancement from the 2018 law that prohibited the inclusion of such agreements resolving claims of sexual harassment.
• As written, the law — like the 2018 expansion — extends the prohibitions on mandatory arbitration of sexual harassment claims to apply to discrimination and harassment claims generally, “except as inconsistent with federal law.” Noteworthy is a June 26, 2019, federal district court decision and order holding that the 2018 statute is preempted.

Have the Statute of Limitations to File Claims of Harassment or Discrimination Changed in New York?

As of Aug. 12, 2020, the statute of limitations to file a claim of sexual harassment is three years — an extension from previous law. However, the statute of limitations to file claims of other allegations of harassment and/or discrimination remains one year after the alleged unlawful discriminatory practice.

In the 2021-22 legislative session, a bill is under consideration that would expand the statute of limitations for filing claims for unlawful employment discrimination practices.

What’s next?

New York state employers will need to prepare to comply with the law. Employers should consider reviewing their current harassment policies to ensure they are compliant. Paychex will continue to monitor this issue and provides solutions that include dedicated HR professionals that help businesses update employee handbooks, conduct trainings, and stay up to date on regulations.

Additional resources

Sexual Harassment Prevention Model Policy and Training (Updated April 2023)

• Includes the model policy PDF, a prevention post PDF, training script PDF, a training slide deck, and videos to download