New York’s guidelines for dealing with sexual harassment—written before the pandemic made video a routine part of the workday—may get revised to help employers address the behavior of remote workers.
“We’re seeing seismic shifts in the way that we work in very short periods of time,” said Nancy Gunzenhauser Popper, an employment attorney at Epstein Becker Green who works with employers and in-house counsel.
“It will be interesting to see if the Department of Labor takes a position on how these rules apply when the conduct is happening over Zoom from someone who’s not within New York State.”
Four things to watch as New York updates its policy:
1. Remote-Work Behavior
The state’s current model policy doesn’t focus on how online interactions and the use of video cameras can lead to harassing work environments, Popper said.
The state needs to make it clear that there can be sexual harassment in a telework environment, said Miriam Clark, a partner at Ritz Clark & Ben-Asher LLP, a law firm representing employees.
Employers need to know how to handle harassment over digital platforms, and about their responsibilities to post policies so that they’re clear to all employees, even those who work off-site, she said.
2. Not Just Sexual
“I think the idea that you can isolate sexual harassment from other forms of harassment is sort of outdated,” said Clark.
One possibility for the updated policy: expanding the scope to cover “any protected characteristic” such as national origin, race, and ethnicity, in addition to sex, said Frank Kerbein, director of the Business Council of New York State’s Center for Human Resources.
Of the New York discrimination complaints filed in 2021 to the U.S. Equal Employment Opportunity Commission, 30.1% were based on race, while 35.1% were based on sex, according to the most recent data.
3. More Specifics
A 2019 state law made it easier for employees to take harassment claims to court by replacing a requirement that the conduct must be “severe or pervasive.”
According to that law, actionable harassment must rise above the level of what a “reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”
That still can leave employers with questions, so “let’s expound upon that” by adding some specific examples in the new guidelines, said Kerbein.
4. Due Process
Clark said the update of regulations presents an opportunity to reexamine the wording of a state requirement that employer policies “include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties.”
Private companies “can’t ensure due process for everyone,” Clark said.
The current policy requires “a whole bundle of protections that I don’t think is realistic for employers nor is it legally necessary.” she said.
Employers are required to adopt a sexual harassment prevention policy, but they don’t have to use the state’s model as long as their company’s meets or exceeds state standards.
While there’s no strict enforcement of the state policy, if businesses are sued, information sought for a lawsuit likely would include whether they distributed a sexual harassment policy and conducted training in compliance with state law, Popper said.
The public comment period closes Sept. 20. The state Department of Labor declined to comment on potential changes.