The New York Department of Labor has issued a new model sexual harassment policy for all employers in New York State. The new model, which was drafted in consultation with the New York State Division of Human Rights (DHR), expands on the topics of sexual harassment as it pertains to gender identity, bystander intervention, and remote workers. The policy will become final after a 30-day comment period, at which point New York employers will need to familiarize themselves with the changes and incorporate them into workplace practices.

Purpose and Goals

The original policy, drafted in 2018, opened with a brief statement about commitment to maintaining a workplace free from sexual harassment for “all employees.” The new draft is more detailed and expands on the policy’s overall purpose and goals. It emphasizes that, while this particular policy is addressed to gender-based discrimination and sexual harassment, it is drafted with the understanding that discrimination “can be related to or affected by other identities beyond gender,” including sexual orientation, age, race, creed, color, national origin, military status, disability, pre-disposing genetic characteristics, familial status, marital status, criminal history, or status as a victim of domestic violence.” Because these identities intersect and impact the way we view others, and the way others view us, the overall purpose of the policy transcends gender-based discrimination, and speaks to the employer’s commitment to preventing discrimination based on “other protected identities” as well.

Gender Identity

While the 2018 policy had only a couple of brief references to gender identity, the new model devotes significant real estate to understanding gender diversity and discrimination based on actual or perceived gender identity:

“The gender spectrum is nuanced, but the three most common ways people identify are cisgender, transgender, and non-binary. A cisgender person is someone whose gender aligns with the sex they were assigned at birth. Generally, this gender will align with the binary of male or female. A transgender person is someone whose gender is different than the sex they were assigned at birth. A non-binary person does not identify exclusively as a man or a woman. They might identify as both, somewhere in between, or completely outside the gender binary. Some may identify as transgender, but not all do. Respecting an individual’s gender identity is a necessary first step in establishing a safe workplace.”

The policy continues to explicitly state that sexual harassment includes unwelcome conduct based on “gender identity or expression (perceived or actual).” Further, it specifies that sex stereotyping occurs when someone’s conduct or traits are judged based on others’ perceptions of how a particular sex should look, dress, or act.

Gender identity is also included among the “examples” set forth by the policy. For instance, as an example of hostile actions taken because of gender identity or expression, the policy now lists “intentional misuse of an individual’s preferred pronouns” and “creating different expectations for individuals based on their perceived identities.”

Bystander Intervention

Unlike its predecessor, the new model policy addresses bystander intervention as it applies to employees, supervisors and managers. Specifically, it offers that, while employees are “encouraged” to report harassment, supervisors and managers and “required” to report it. Further, it sets forth a non-exhaustive list of “five standard methods of bystander intervention”:

  1. A bystander can interrupt the harassment by engaging with the individual being harassed and distracting them from the harassing behavior;
  2. A bystander who feels unsafe interrupting on their own can ask a third party to help intervene in the harassment;
  3. A bystander can record or take notes on the harassment incident to benefit a future investigation;
  4. A bystander might check in with the person who has been harassed after the incident, see how they are feeling and let them know the behavior was not ok; and
  5. If a bystander feels safe, they can confront the harassers and name the behavior as inappropriate.

Diverse Examples

The new model policy also attempts to provide a more diverse set of “example” scenarios of gender-based discrimination, addressed to different types of careers. For instance, one example is addressed specifically to sexual advances or pressure placed on service industry employees in industries where “hospitality and tips are essential to the customer/employee relationship.” Another is addressed towards asking employees to take on traditionally gendered roles, “such as asking a woman to serve meeting refreshments when it is not part of, or appropriate to, her job duties.”

Conclusion

The model policy remains non-final during a 30-day window during which the public is encouraged to provide comments online at the following address: ny.gov/content/sexual-harassment-prevention-policies.

Employers should begin to become familiar with the new model policy, and make sure all human resources personnel are advised of the changes. Additionally, workplace manuals may need to be updated. If you have questions about New York’s new model gender discrimination and sexual harassment policy, please contact Rachel A. Morgenstern at rmorgenstern@rmfpc.com or (516) 663-6537.