Effective October 9, 2018, New York State mandated that all employers adopt a sexual harassment policy and provide annual sexual harassment training for all employees. The deadline to complete the mandatory training for this year is October 9, 2019. If you have not done so already, you must either adopt the model New York State sexual harassment policy or issue a policy that complies with the new regulations and complete the training of your employees. The policy must be provided to employees upon hire and at the required annual sexual harassment training.
In addition to complying with New York State law, the need to properly train employees and supervisors is particularly important as New York State recently passed a series of changes to the New York State Human Rights Law that significantly expands employees’ rights and increases employers’ potential liability.
For example, legislation that goes into effect October 12, 2019 loosened the standard for establishing that an employee was subject to a hostile work environment based upon a protected characteristic. Prior to this legislation, under New York State law the employee had to establish that he or she was subject to severe or pervasive conduct. Under the amended law an affirmative defense to a hostile work environment claim will only exist where the harassment is not worse that what “a reasonable victim of discrimination with the same protected characteristic” would consider petty slights or trivial occurrences. Employees claiming discrimination will also no longer have to establish that they were treated differently than similarly situated employees outside their protected category.
Additionally, employers will no longer be able to escape liability for harassment where the employee did not first make a complaint of discrimination utilizing the employer’s internal complaint procedures. Thus, employers can potentially be liable for harassment for which they were unaware of and were unable to address promptly.
The new legislation also provides that the New York State Human Rights Law is to be construed liberally, regardless of the federal civil rights laws and any interpretation by federal courts of similar language set forth in the federal civil rights law. When a similar policy statement was adopted in New York City with regards to the New York City Human Rights Law the number of cases being set down for trial increased dramatically. Thus, it is critical that supervisors are trained to identify and address harassment promptly.
Attorneys at Daniels, Porco and Lusardi, LLP. are available to assist you with training your employees and supervisors as well as with compliance with the myriad of laws, rules and regulations affecting the workplace. This article does not constitute legal advice. For additional information please contact Jonathan Bardavid, Esq. at 845-225-8404 or [email protected].