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Here at Miletti Law®, we are the authoritative force in Employment and Labor Law. Therefore, we are committed to updating our series on employment & labor law with fresh, verifiable, and credible content. In that spirit, this blog is Part VIII of our series on New York State and City laws that apply to the issues of workplace harassment, discrimination, & retaliation. In New York, harassment claims, disparate impact claims, and disparate treatment claims are recognized by the jurisdiction’s three laws that include the New York City Human Rights Law (NYCHRL), NYC Administrative Code 8-101 et seq, the New York Equal Pay Act (N.Y. Lab. Law § 194), and the New York State Human Rights Law (NYSHRL) (N.Y. Exec. Law § 290 et seq.). So far, “Disparate Impact Claims,” as recognized by the NYCHRL and NYSHRL, were covered in Part VII of this series. Accordingly, to keep the discussion going, we have hammered on “Harassment Claims,” as recognized by the NYCHRL in this blog and Part VIII of the series. For the purpose of clarity, harassment claims, as recognized by the NYSHRL, will be covered in the next blog and Part IX of this series.

Harassment Claims under the NYCHRL

Under NYC Administrative Code § 8-107, subd. 1(a), the NYCHRL is more comprehensive and favorable to employees in its harassment standards. To show that one has been treated differently than other similarly situated employees because of one’s protected status, an employee is supposed to provide a preponderance of the evidence in harassment cases under the NYCHRL. The NYCHRL does not recognize the applicability of the “pervasive or severe” test that NYSHRL & federal cases recognize. Instead, suppose an employer can prove that the conduct in question is nothing more than what would be considered a “petty slight or trivial inconvenience” by a reasonable victim of discrimination. In that case, the NYCHRL provides the employer with an affirmative defense that would help avoid liability. However, when it comes to the consideration of permissible damages, the NYCHRL permits the applicability of the pervasive or severe test.

In sexual harassment claims brought forth under the NYCHRL, the Faragher-Ellerth defense is precluded by the NYC Administrative Code § 8-107, subd. 13(b). However, although an employer might not be held liable if it is proven that the alleged harassment was nothing more than a petty slight or trivial inconvenience, the NYCHRL holds the employer strictly liable for the actions of the supervisory employee belonging to this employer.

In our series titled “New York City Major Labor and Employment Law Update,” we covered, in detail, the need for New York City employers to remain compliant with the NYCHRL’s anti-sexual harassment requirements in their workplaces. Employers are required to do several things in order to comply with these requirements: Two of these things include:

Conduct Anti-sexual Harassment Interactive Training

As required by the NYCHRL, private employers should provide annual anti-sexual harassment interactive training to all employees, including freelancers, independent contractors, interns, and managerial or supervisory employees, if such employers have15 or more employees. If an employee interacts with New York employees even if not physically present in the city but based elsewhere, they should also be trained.

In line with the NYCHRL, for employees who, engaged either in a part-time or full-time plan, work more than 80 hours in a calendar year, training should be held after 90 days of the initial hire. The following must be included in the training:

  • A statement that to both state and federal law, sexual harassment encompasses unlawful discrimination.
  • A description and examples of sexual harassment.
  • An explanation that to the NYCHRL, sexual harassment encompasses unlawful discrimination.
  • Specific responsibilities of managerial or supervisory employees in preventing sexual harassment and retaliation, including measures that may be taken by employees to address sexual harassment allegations appropriately.
  • The prohibition of retaliation, including examples.
  • Information about bystander intervention, including how to engage in bystander intervention.
  • The complaint process available from the federal equal employment opportunity commission, New York State’s division of human rights, and New York City’s human rights commission.
  • Any internal complaint process through which employees can address their sexual harassment claims.

Adhere to Anti-sexual Harassment Requirements for Posting

The Human Rights Commission develops two documents that must be posted by the employer in compliance with anti-sexual harassment requirements.

  • Sexual Harassment Information Sheet – while it may be included in the employee handbook as mandated under NYC Administrative Code § 8-107, sub. 29(e) (eff. Sept. 6, 2018), the NYCHRL requires employers to provide every employee with this sheet at the point of hiring.
  • Anti-sexual Harassment Rights and Responsibilities Notice – Similarly, this notice should be conspicuously displayed in break rooms or other gathering areas for employees. As required under NYC Administrative Code § 8-107, sub. 29(a), the notice must be displayed in both Spanish & English.

However, until the cycle that follows, an employee is not required to receive additional anti-sexual harassment training at another employer if such an employee has already undergone such training at one employer. On their part, employers must keep, for three years, updated records of all trainings. Whether electronic or otherwise, these records should include signed acknowledgments from employees. The New York City Human Rights Commission (NYCHRC) provides an online interactive training module through which, following the assessment and completion of a module, an electronic certificate of completion is created.

As indicated earlier, we shall cover “Harassment Claims as Recognized under the New York State Human Rights Law” in the next blog and Part IX of this series.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.