The Dos and Don’ts of Preventing Sexual Harassment in Your New York Workplace

If you ever find yourself worrying that your workplace may not be up to speed on sexual harassment policies, you are probably right to do so. It only takes one person who does not fully understand the legal and social implications of sexual harassment policies to bring an otherwise strong organization crumbling down.

What Exactly is Sexual Harassment?

According to the U.S. Equal Employment Opportunity Commission, it is unlawful to harass any person based on sex, gender or gender expression. Harassment can include unwanted sexual advances, requests for sexual favors, verbal harassment and physical attacks. Sexual harassment also includes derogatory remarks about a person’s gender. Any person can be a harasser, not just an individual’s direct supervisor. A harasser can be a supervisor, co-worker, client, customer, etc.

On a federal level, there are several laws in place that aim to prevent workplace sexual harassment. The following laws apply to all states:

• Title VII of the Civil Rights Act of 1964, which makes it illegal to discriminate against someone based on sex, national origin, race, color or religion
• Pregnancy Discrimination Act, which makes it illegal to discriminate against anyone because of pregnancy, childbirth or any medical condition that relates to pregnancy or childbirth
• Equal Pay Act of 1963, which makes it illegal to pay men and women different wages for doing the same job if the difference in pay is based on sex
• Sections 102 and 103 of the Civil Rights Act of 1973, which permit jury trials and damages awards in intentional discrimination cases

It is important to consider the effects that sexual harassment can have on your employees and your organization. For instance, individuals who have experienced sexual harassment are more likely to experience problems such as depression and anxiety. Be mindful that 81 percent of women and 43 percent of men report having been sexually harassed during their lifetime. This is a staggering amount of people, and as employers, we have a responsibility to provide a safe and productive environment for our employees.

New York Sexual Harassment Specifics

Every state has its own set of laws to handle the issue of sexual harassment in the workplace. New York is no exception, with new legislation to strengthen protections against discrimination and harassment as a part of the New York State Human Rights Law. With these strengthened policies, it is crucial that every organization reviews its sexual harassment policies with its employees.

Key points from Governor Andrew Cuomo’s new legislation include:

• Harassment is against the law whenever an individual is subjected to inferior terms, conditions or privileges of employment
• The harassment does not have to be severe or pervasive for the employer to be liable
• To establish liability, the complainant does not have to identify a similarly situated person or employee that was treated more favorably
• A complainant does not have to complain to their employer or file a formal grievance in order to establish liability

The legislation specifies that sexually harassing behaviors can consist of unwanted verbal or physical sexual advances, sexually explicit comments or discriminatory remarks based on sex or gender. Examples of this include:

• Requests for sexual favors, which can include threats, implied conditions of employment, etc.
• Pressure for unwanted sexual activities
• Verbal harassment or abuse in the form of a pattern of sexual comments or questions
• Unnecessary or unwanted physical touch
• Displays of lewd images

Employer Obligations

According to the New York State Government, every employer must adopt a sexual harassment prevention policy. They may adopt the model policy provided by the government, or they can create their own as long as it meets or exceeds the following standards:

• Prohibits sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
• Provides examples of prohibited conduct
• Includes information about the federal and state statutory provisions about sexual harassment, possible remedies for victims, and a statement that there may be additional local laws to take into consideration
• Includes a complaint form
• Includes a procedure for timely and confidential investigation of complaints that ensures due process
• Informs employees of the rights for redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
• Clearly states that sexual harassment is considered a form of employee misconduct and that consequences will be enforced against individuals engaging in sexual harassment
• Clearly states that retaliation against individuals who complain of sexual harassment is unlawful

In addition to providing a clear sexual harassment policy, employers are also obligated to provide employees with sexual harassment prevention training. Once again, employers can opt to use the model policy, or they can create their own training that meets or exceeds the minimum standards:

• Must be interactive
• Includes an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
• Includes examples of conduct that would be considered unlawful sexual harassment
• Includes information concerning the federal and state statutory provisions concerning sexual harassment and remedies for victims
• Includes information concerning employees’ rights to redress and all available forums for adjudicating complaints
• Includes information addressing conduct by supervisors and any additional responsibilities taken on by supervisors

The State of New York provides sample training videos, but they are not interactive. An employer using the provided videos must also ask questions of employees, answer all questions asked by employees appropriately and fully in a timely manner, and require feedback from employees about the training.

Responding Effectively to Sexual Harassment Allegations and Conducting Investigations

If you pay attention to the news, then you know that sexual harassment and discrimination in the workplace have been in the spotlight. Sexual harassment allegations pop up in every industry from government to entertainment. It is important for organizations to protect themselves to avoid damaging scandals. The actions an employer takes in the midst of a sexual harassment allegation are key to limiting bad press along with managing the employer’s potential liability.

Some key steps to take include:

• Notify the Board of Directors and any relevant helpful individuals. All key players in your organization should be in the loop about what has happened. Trying to hide certain elements of significant allegations will only hinder the process
• Treat the complaining individual with respect. The employee who has made the complaint likely feels vulnerable and concerned and should be treated with the same respect as all other employees. Thank the employee for raising their concerns and assure them of your intentions for a prompt and thorough investigation
• Promptly and thoroughly investigate the complaint. Failure to treat a complaint seriously can cause worse problems in the future. Investigations should be led by appropriately trained individuals who are able to be impartial. All relevant individuals should be interviewed, communications evaluated, and notes made on concerns raised
• Review all information throughout the process. Appropriate action should be taken based on the information discovered in the investigation

Retaliation

Retaliation against individuals making sexual harassment complaints is prohibited by law. Any retaliation that occurs can be pursued in court by the victim as a separate claim. Retaliation is when the terms and conditions of one’s work are changed or threatened in response to one’s reports of sexual harassment or cooperation in any investigations related to sexual harassment.

How Managing Sexual Harassment Policies Will Affect Your Organization

Making a concerted effort to eliminate any potential for sexual harassment in your workplace will enormously benefit your organization. Employees who feel safe in their work environments are more likely to be productive, and there are many other benefits to a work environment free of sexual harassment and threats.

Leaders who encourage an environment of safety and convey zero-tolerance for violence and harassment can create:

• An enhanced company safety culture
• High-performing employees
• Employees who feel valued and invest in their company long-term
• Employees who understand that they can voice concerns before damaging problems arise

Next Steps

As mentioned earlier, the State of New York provides sample training videos on workplace sexual harassment. However, the videos are not considered to be interactive, which is a key requirement according to New York law.

In order to minimize the distractions that come with stopping video training for discussions, it may be worthwhile to consider online training that incorporates interactive lessons right into the learning. KnowledgeCity’s course “NY Sexual Harassment Prevention: Employees, Supervisors, and Managers” is designed to ensure that employees understand what sexual harassment is, the federal and state laws pertaining to sexual harassment, how to protect themselves from sexual harassment, and their employer’s responsibilities.