Small business owners need to be aware of new laws to eliminate sexual harassment in the workplace.
The emergence of the “Me Too movement” and lurid examples of sexual abuse on a shocking scale have catalyzed law makers to consider ways of educating workforces about what sexual, gender-based harassment is and how to discourage it.
At the forefront of this oncoming legislative tide is New York City and New York State, each of which recently enacted legislation designed to implement comprehensive antiharassment laws.
In keeping with the 50 laboratories theory of how law develops in the U.S., readers should understand that what happens in New York, may only happen in New York and that other states are likely to address the scourge of sexual harassment and workplace predation in a different way. But, it is worth considering, nevertheless, what the recent enactments entail.
Not only might New York’s initiative foreshadow initiatives elsewhere, but it may also be worthwhile for employers even in other jurisdictions to be cognizant of what the City and State of New York consider to be best practices when it comes to how employers should be addressing sexual harassment issues.
One further point that is worth making is that the quid pro quo to an employer’s complying with the anti-harassment regulations are benefits in litigation against claims that may be brought against it.
The extent to which compliance would create a safe-harbor for employers is as yet unclear, but there will doubtless be advantages to employers who attempt to meet the regulatory requirements, such as mitigation or elimination of civil penalties and punitive damages. Because the New York City and New York State rules overlap, the easiest way to consider them is in the form of a chart, which I hope will clarify what the State and City requirements are and how they compare.
New York State New York City
Legislation was passed in April 2018 as part of a State Budge law. The legislation is due to start becoming effective in July 2018.
An annual training requirement will come into force on October 9, 2018.
The Stop Sexual Harassment in New York City Act was passed by the New York City Counsel in February 2018 and is expected to be signed by the Mayor. This legislation is due to become effective as of April 1, 2019
Under the Act, which is to be administered by the New York City Commission on Human Rights, sexual harassment will be considered an act of discrimination
Claims under the City Act may be brought within three years of a violation
While mandatory anti-sexual harassment training is applicable to employers with 15 or more employees, the City Act will apply to all employers, not just employers with 4 or more employees that are made subject to the requirements of the City Human Rights laws
All Employers will be required to engage in anti-sexual harassment training of employees on an annual basis
The form and elements of the training would be developed under the auspices of the New York State Division of Human Rights
Employers employing 15 or more workers would be required to provide employees (including interns and management) annual anti-sexual harassment training
The training would be required to include a statement against sexual harassment, examples of sexual harassment, discussion about bystander intervention, and procedures concerning how to bring a complaint of sexual harassment to the employer’s attention
Training must be “interactive”, but does not require in-person training
Employers would be obliged to provide anti-sexual harassment training to new hires within 90 days of hire
Employers would be required to obtain from each employee an “acknowledgement” that they have attended the annual session and keep them and training records for at least a period of three years
Employers would have to issue to employees an anti-sexual harassment policy. A model policy will be made available to employers, but they would have leave to develop their own policies if the policies include certain mandatory elements such as the following
(i) a statement against discrimination, (ii) examples of sexual harassment, (iii) information on remedies available to victims of sexual harassment; (iv) standard complaint form, (v) procedure for filing grievances and investigative process in connection with workplace claims, (vi) statement that sexual harassment is a form of employee misconduct, (vii) statement prohibiting retaliation against complainants of sexual harassment violations
The employer would be obliged to issue every new hire an information sheet on sexual harassment prescribed by the New York City human Rights Commission
Employers would also be obliged to display at the worksite a poster issued by the City Human rights Commission detailing the rights and responsibilities of employers under the City Act
The City Act also provides that the website of the City Human Rights Commission would also include extensive information on sexual harassment and detail how complaints alleging non-compliance with the City Act can be filed with the City authorities
Significantly, the anti-sexual harassment legislation will also cover non-employees, such as vendors and contractors
State law will prohibit the use of confidentiality clauses in settlements involving sexual harassment claims unless the complainant prefers otherwise. In the latter instance complainants will be afforded a certain period of time within which they can reverse themselves.
State law will prohibit arbitration clauses that would mandate the arbitration of sexual harassment claims
Bidders for State contracts would be required to attest to their compliance with the State’s anti-harassment laws.
The chart attempts to hit the high points of the laws under review and does not delve into the details. As such, it should not be relied on as the basis for implementing anti-harassment policies.
The Take Away:
The consensus is that the time has come to get serious about eliminating sexual harassment in the workplace.
The initiatives taken in the State of New York and City of New York represent the first such bold moves to grapple with the problem. For employers who have branches in New York or have contracts with the City or State of New York, the New Rules for employers relating to sexual harassment prevention may have direct application.
But even for employers operating outside of New York, the steps taken by these jurisdictions to eliminate sexual harassment, among other things, by way of educating workforces and management is instructive and could serve as a baseline for good practices in this area.