New York Employers Should Prepare for New Sexual Harassment Legislation

In April 2018, both New York State and New York City enacted significant legislation addressing sexual harassment in the workplace through education, prevention, and increased transparency, and broadening the scope of anti-discrimination laws applicable to sexual harassment and gender based discrimination. The following are the most significant provisions affecting private employers:

New York State Provisions

Removing Confidentiality Provisions from Settlement Agreements
Settlement agreements will no longer be permitted to include a confidentiality provision that would keep private the facts and circumstances giving rise to the sexual harassment claim unless specifically requested by the claimant. The same provision also adopts the Older Worker Benefit Protection Act time frames for considering a settlement of a sexual harassment claim, giving the claimant 21 days to consider the agreement and 7 days after signing to revoke it.

Preventing Private Arbitration of Sexual Harassment Claims
The new law prohibits contractual provisions requiring arbitration of sexual harassment claims, except as provided in collective bargaining agreements. This provision may apply to few employers because in many instances it may be preempted by the Federal Arbitration Act (FAA) which allows for such arbitrations. The FAA generally applies, except where the employer’s business does not affect interstate commerce or where the parties agree to apply New York arbitration law rather than the FAA.

Expanding the Categories of Workers Who May Bring Sexual Harassment Claims
An employer may be liable for sexual harassment of non-employees, including contractors, vendors, and consultants where the employer knew or should have known the non-employee was subject to sexual harassment in the workplace and failed to take prompt remedial action.

Formulating Model Policies and Training Materials
The new law authorizes the State to create model sexual harassment policies and training programs. Private employers will need to provide a written sexual harassment policy to employees and provide annual training that equals or exceeds the minimum standards set out in the models. The policy must include a standard complaint form and a procedure for timely and confidential investigation of complaints that ensures due process for all parties.

New York City Provisions

On April 11, 2018, the New York City Council passed the Stop Sexual Harassment in NYC Act which is expected to be signed by Mayor de Blasio in the coming days. The legislation, aimed at stopping sexual harassment in New York City, includes the following significant provisions:

Expanding Employers Covered by City Gender Discrimination Laws
While the New York City Human Rights Law (NYCHRL) previously only applied to employers of 4 or more employees, the new law expands the scope of the gender based discrimination provisions to include employers of even a single employee.

Extending Statute of Limitations
The time for filing complaints with the New York City Commission on Human Rights on (CCHR) involving gender-based harassment will be extended from one year, to three years from the date of the harassment.

Notice of Anti-Sexual Harassment Rights and Responsibilities
All New York City employers regardless of the number of employees will be required to display an anti-sexual harassment rights and responsibilities poster to be designed by the CCHR and to distribute a CCHR information sheet on sexual harassment to their employees. Requirements will become effective 120 days after enactment of the law.

Mandatory Annual Interactive Training for All Employees
One year after enactment of the law, all New York City employers with 15 or more employees will need to conduct annual interactive anti-sexual harassment training for all employees. At a minimum, the training must include:

• An explanation of sexual harassment as a form of unlawful discrimination under local, state and federal law;
• Practical examples of what sexual harassment is and is not;
• A review of internal complaint processes;
• A review of the complaint processes available through the CCHR, the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission;
• A review of legal prohibitions on retaliation; and
• The importance of bystander intervention.

Separate training also must be provided for supervisory and managerial employees covering their responsibilities for prevention and response to harassment and avoidance of retaliation. Employers will be required to keep a record of all trainings for three years, including signed employee acknowledgements.

Impact on Employers

• Employers should take advantage of the introduction of these new laws to review all of their sexual harassment policies and procedures, focusing on the following:
• Review existing anti-sexual harassment policies, retaliation policies, and investigative procedures;
• If not yet existing, develop formal complaint forms, and identify compliant training programs for employees and supervisors;
• Review form settlement agreements and arbitration provisions;
• Newly covered employers with fewer than 4 employees will need to ensure they have policies and procedures in place to address sexual harassment; and
• Employees will need to be educated on the expansion of sexual harassment protections to non-employees.

For questions about the new anti-sexual harassment laws and how best to prepare, contact:

Robert J. Tracy
Partner
Labor and Employment
(212) 705-9814
rjtracy@gibney.com