Sexual harassment in the workplace is not a new phenomenon. It has risen to the forefront of public consciousness many times. At least since the infamous Clearance Thomas Supreme Court confirmation hearings in 1992, the general public has been well aware of the problem. Recent revelations about Hollywood producer Harvey Weinstein along with a cavalcade of high-profile allegations of workplace sexual misconduct which has resulted in the ouster of famous actors, top news broadcasters, wealthy executives, a federal Appellate Judge, and even a sitting United States senator, have generated renewed interest in concrete solutions to the problem. After all, the most troubling aspect of all this unfortunate news is that there are countless instances of workplace sexual harassment being perpetrated by less noteworthy offenders that go unreported and unpunished every day in workplaces across the country.
Not content with hand-wringing, the New York State Legislature included sweeping new sexual harassment prevention reforms into the State’s Budget, which were signed into law by the Governor on April 12, 2018. These laws and regulations affect all entities throughout the state, no matter the size, , so long as they employ at least one individual aside from the owner, excluding New York City, which is implementing its own unique slate of reforms. It is crucial that all New York employers familiarize themselves with these new rules and adjust their policies and practices accordingly.
The reforms adopt a standard definition of sexual harassment:
Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature if such conduct is made either explicitly or implicitly a term or condition of employment, or submission to or rejection of such conduct is used as the basis for employment decisions affecting an individual’s employment, or such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment, even if the complaining individual is not the intended target of sexual harassment.
Employers should use this definition in all company documents and training materials.
Major Policy Updates
The reforms are highlighted by five major changes that effect all employers:
1) expansion of liability for harassment that takes place on employers’ watch;
2) prohibition of confidentiality agreements in settlements of sexual harassment claims;
3) no more forced arbitration of sexual harassment claims;
4) mandatory adoption of written sexual harassment prevention policy; and
5) mandatory sexual harassment training for all employees.
These new policies all come with their own nuances and unique implementation features. Grappling with the details of each policy is important to ensure every employer is in compliance. Next week, I will elaborate on what exactly each of these changes mean for employers and what some appropriate steps would be for them to make sure they do not run afoul of the new laws.