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As part of the budget process, the Legislature and the Governor agreed to enact several sweeping workplace rules designed to prevent sexual harassment.  Beginning in October 2018, all employers in New York will be required to adopt a sexual harassment prevention policy and provide annual sexual harassment prevention training. 

Both the mandated policy and training must meet or exceed minimum standards set by the model policy and training program provided by the Department of Labor and Division of Human Rights.  As of this writing, the State has produced only drafts of the required model policy and training standards.  Those draft documents, together with a draft model complaint form are available here.

 The new rules require that, at a minimum, the policy must:

• Prohibit sexual harassment;
• Include but not be limited to information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
• Include a standard complaint form;
• Include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
• Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
• Clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
• Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.

In addition, the minimum training must be interactive and include:

• An explanation of sexual harassment;
• Examples of conduct that would constitute unlawful sexual harassment;
• Information regarding the federal and state statutory provisions addressing sexual harassment and remedies available to victims of sexual harassment; and
• Information concerning employees’ rights of redress and all available forums for adjudicating complaints.

The new rules also extend sexual harassment protections to non-employees who are contractors, subcontractors, vendors, consultants or other persons providing services pursuant to a contract in the workplace. 

Finally, the new rules address confidentiality in settlement agreements.  Generally, confidentiality is prohibited unless requested by the person claiming harassment. 

It has been our experience that nearly all employers already have sexual harassment prevention policies.  However, existing policies will need to be reviewed and likely revised to ensure compliance with the new rules as each policy must meet or exceed the model policy. 

While these new rules may seem onerous and costly at first, implementation of these measures will serve to prevent and otherwise address sexual harassment in the workplace.  These measures will also enhance an employer’s ability to defend itself from any claims of harassment that may be made in the future.  In defending against these and other employment discrimination claims, we have found that employers with high-quality existing policies and training are often easier to defend.

Although these new rules should reduce the incidence of sexual harassment in the workplace, they cannot guarantee that all claims will be prevented.  Thus, all anti-harassment policies will be required to provide information concerning employees’ rights of redress and all available forums for adjudicating complaints.  While there are several forums available for adjudicating such complaints, it has been our experience that claims of employment discrimination are often filed with the New York State Division of Human Rights.

One of the benefits to filing claims with the Division is that a claimant does not need an attorney to pursue a claim in that forum.  If the Division concludes that probable cause exists to believe that discrimination took place, it will assign one of its attorneys to prosecute the case on behalf of the claimant.  We have handled scores of these cases over the years, and most of the cases we’ve handled have resulted in “no probable cause” determinations. 

If an employer receives notice that a claim has been filed against it in the Division, the employer should not delay in retaining counsel.  The deadlines are very short and the Division typically reaches a probable cause determination within 180 days of the complaint being filed. 

If you would like to schedule a consultation to talk about how this legislation may impact your business,  please feel free to contact Peter Weishaar at pweishaar@mccmlaw.com or 585.546.2500

Peter's employment practice includes the representation of businesses and individuals in matters involving restrictive covenants, non-compete agreements, discrimination, failure to pay wages in State and Federal Courts, and before administrative agencies, including the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission. Peter also writes a law blog, the Rochester Law Review, covering legal developments, cases of interest, and events happening in all of the key areas of his practice.  You can follow the blog on Facebook and Twitter.  

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.