Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute hostile-environment sexual harassment when the conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or of creating an intimidating, hostile, or offensive working environment. Such conduct can destroy lives and ruin businesses. In cases of workplace sexual harassment, it is often difficult for individuals to determine and understand their rights. While for businesses, it is imperative that strict compliance with all applicable laws is maintained and effective, preventative measures be implemented.
Last month, the New York State Senate passed comprehensive legislation designed to combat sexual harassment occurring in workplaces throughout the State. Employers will now be held responsible for implementing certain steps to ensure they prevent harassment and discrimination. These provisions will be required of all businesses with over 15 employees.
- Effective immediately – Expanded protections against sexual harassment extending the application of the New York State Human Rights Law to “non-employees,” including contractors, subcontractors, vendors, consultants, and other persons providing services pursuant to a contract.
- Effective July 11, 2018 – Prohibitions on the use of non-disclosure clauses in settlements or agreements relating to claims of sexual harassment, unless the condition of confidentiality is the stated preference of the complainant, as well as prohibitions curtailing the use and enforceability of mandatory arbitration clauses for claims of workplace sexual harassment.
- Effective October 9, 2018 – Mandatory distribution of written anti-harassment policies in the workplace and annual anti-harassment training for all employees, both based on models to be developed and published by the New York State Department of Labor and Division of Human Rights. Interactive trainings for new hires as well as annually.
- Effective January 1, 2019 – Requirement that bids on certain state contracts contain express language affirming that the bidding entity has implemented a written policy addressing sexual harassment in the workplace and that it provides annual sexual harassment preventing training to all employees.
While this legislation should help curb sexual harassment and other inappropriate behavior in the workplace, it imposes upon employers heightened standards compliance with which is essential to limit liability. All so-affected employers should therefore consult with counsel to ensure their human resources policies are aligned with this significant change in the law.
Saul D. Zabell, Esq. May 10, 2018
