New York State and New York City recently joined other states and local jurisdictions that have long-standing laws to stop sexual harassment in the workplace. New York State and New York City laws now require employers to adopt policies and provide training to prevent sexual harassment. The legislative and media spotlight on sexual harassment is a reminder that employers everywhere have a duty to stop harassment. Read on for a short legislative history, a summary of the laws recently adopted in New York, and a list of resources for establishing best practices in law firms and client workplaces.
History of Sexual Harassment Policies and Training
Over the past 25 years, several states have adopted legislation mandating sexual harassment policies and training in the workplace. Maine was the first state to adopt a mandatory training law in 1992 and has been followed by California, Colorado, Connecticut, Massachusetts, New Mexico, Vermont, and now New York. Regardless of whether your state requires policies and training, adopting them is advisable for organizations in all states to prevent inappropriate behavior, avoid negative publicity, and defend against potential claims.
New York State and New York City Laws
Below is a summary of the anti-sexual-harassment law recently adopted by New York State:
- Policy and Training. Employers must provide employees with policy statements and annual training.
- Grievance Procedure. A complaint form must be included in policy statements.
- Arbitration. Employers may not require arbitration of sexual harassment claims. Exceptions are made for arbitration clauses in collective bargaining agreements and arbitration agreements entered into after a dispute arises.
- Confidentiality. Employers may not use nondisclosure clauses in settlement agreements, unless requested by the victim.
- Protected Persons. Employees (full-time, part-time, and temporary) and nonemployees (consultants, contractors, and vendors) are protected by the law.
In addition to the above requirements, the City of New York mandates the following:
- Harassment. The definition of harassment is expanded to include gender-based harassment.
- Poster. Employers must display a city-designed anti-sexual-harassment poster.
- Training. Employers must provide annual training to all employees and train new employees within 90 days of hire. The training must include information about submitting complaints, helping as a bystander, and responsibilities of managers.
- Limitations Period. The limitations period for gender-based harassment claims is extended to three years.
Preventing Sexual Harassment
To prevent sexual harassment, it is advisable to have a policy that describes it, explains how to submit a complaint, and sets sanctions for violations. Company policies and procedures should be communicated to employees using policy manuals, training programs, and posters. These actions are so essential that they are mandatory in several states.
Adopting Policy Statements
Employers should adopt a written policy that explains sexual harassment and encourages victims to submit complaints. The policy should contain contact information for the person designated to receive complaints and explain how complaints will be investigated. To promote compliance, the policy should be distributed to all employees and posted in breakrooms or restrooms. The policy should be reviewed at least annually to fix problems and respond to developments in the law.
Establishing Training Programs
Provide periodic training to all employees to help them identify and respond to inappropriate conduct. Keep in mind that employees who have behaved inappropriately toward other employees commonly consider their words or actions “appropriate,” so it can be a challenge to help employees understand that “inappropriate” behavior in the workplace is a legal matter with important consequences. Employees should be given the time and opportunity to ask questions, without fear of embarrassment, and obtain clarifying examples and answers. The training should include an explanation of the procedure for submitting a complaint and how victims and bystanders should respond. Training should be given at the time of hiring and should be repeated at least annually.
Evolving laws and media attention make stopping stop sexual harassment imperative for lawyers and their clients, especially in the states that require employers to adopt anti-harassment policies and training. Whether your state has adopted mandatory policies and trainings or not, it is advisable to create and communicate policies for your firm to ensure a positive and successful work environment.
See the New York Law Journal for articles about anti-harassment policies and training programs. Also see the journal’s article about stopping harassment in the legal profession. See the PBS NewsHour for a report on the evolution of sexual harassment training. Also see the American Bar Association’s new book entitled Zero Tolerance: Best Practices for Combating Sex-Based Harassment in the Legal Profession, Nolo’s The Essential Guide to Handling Workplace Harassment & Discrimination, LandMark’s casebook entitled Sexual Harassment, and the many articles (including “Sexual Harassment Training and Policies Only Go So Far,” Law Prac. Today, May 14, 2018), blogs, and websites about sexual harassment.
Michael L. Goldblatt has authored numerous books and articles about marketing for lawyers.
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