As the #MeToo Movement gained momentum in 2018, New York joined California, Connecticut and Maine as the fourth state requiring businesses to train employees to prevent harassment. But they didn’t stop there. The new legislation includes substantial new requirements for employers, and you’re about to start noticing.
Starting October 9, every employer in New York will need to update or adopt a sexual harassment policy, and by January 1, every employee in New York will need to receive sexual harassment prevention training.
The new law changes the ways employers prevent and address workplace harassment, including any type of bias on the basis of sex: sexual harassment, sex stereotyping, harassment on the basis of gender identity (including being transgender) or pregnancy, in addition to ‘quid pro quo’ harassment – when a person in authority trades, or tries to trade, job benefits for sexual favors.
Some of the most profound changes address mandatory arbitration and non-disclosure agreements. With narrow exceptions, employers cannot require that sexual harassment claims go to arbitration, a forum that lacks the protections of bringing a claim in court. The new law also prohibits nondisclosure agreements unless the person bringing the claim wants one, making it easier for claimants to speak about their experience and harder for businesses to keep harassment allegations hidden. And if a company has, or bids on, a contract to provide goods or services to the State of New York, they’ll need to prove that they have a policy and training regimen that complies with the law.
Expect to see a number of changes in your workplace (or get ready, if you’re responsible for implementing them), especially if attention to sexual harassment has not been a priority:
It’s no longer good enough for an employer to say ‘it’s not my problem,’ or ‘I don’t control the customer.’ Instead, employers have to address harassment committed by employees and third-parties, including vendors, building security, clients, customers, visitors, interns or others. Additionally, employers need to protect non-employees in the workplace from harassment, including contractors, subcontractors, temporary workers, vendors, consultants, interns or others providing services in the workplace.
Updated or new policies will explain how to report harassment internally and include a complaint form to use, as well as what government agencies you can make a report to. You’ll know how your employer investigates complaints, and if you’re a supervisor, what your additional responsibilities are when you know about harassment. You’ll know all this because you’ll receive a copy of it in writing. Non-employee workers who are covered by a new sexual harassment prevention policy will receive a copy as well.
Supervisors and managers must report any harassment that they observe or know of, even if no one objects to the harassment, and the new policy sanctions these personnel who knowingly allow harassment to continue. Supervisors and managers are crucial in building a workplace culture that doesn’t tolerate harassment, so knowing how to handle a complaint and what your responsibilities are will have an outsized impact on preventing harassment.
By January 1, 2019, every employee in New York State must receive an interactive training on how to prevent and address workplace sexual harassment, including what rights and remedies exist for victims and the responsibilities for supervisors. Ideally, this will be an in-person training and not just a check-the-box exercise to avoid legal liability.
Workers can – and should – hold their employers to task on the new requirements. Read your new policy and understand it. Ask questions if you’re not sure about something. Get clear on how your business is really going to prevent retaliation. Check out the model resources on the New York State website. If you’re a supervisor, demand to get what you need to handle complaints properly. If you’re a business owner, give the effort your vocal support and then put in the resources the business needs towards accountability for preventing harassment in the workplace.
This new law benefits more than potential harassment victims – if employers and managers seize this opportunity, they win too. Businesses that tolerate harassment lose productivity from workers distracted by avoiding a harasser, face reduced workplace morale, lose good people who get fed up and quit, and take a major reputational hit when workers tell their stories. And all of that is before a lawsuit.
New York has set out to create a new standard in workplace protections, with the hope that new norms will be established in its workplaces. If standards developed here have a positive effect, there will be good reason to see these standards adopted elsewhere.
It’s not possible to legislate workplace culture, but New York’s aim is to encourage workplace cultures that support the reporting of harassment. #MeToo and New York have given New York businesses an opportunity to increase productivity and support inclusive workplaces at the same time. It is up to the people who run these businesses to seize the moment.
Audrey Roofeh leads Mariana Strategies LLC, an employment law consulting firm. Her work focuses on building effective harassment prevention programs for businesses.
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