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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 IX 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.). In Part VIII of this series, we hammered on “Harassment Claims,” as recognized by the NYCHRL, and promised to cover the same as under the NYSHRL in our next blog and Part IX of this series.

Harassment Claims under the NYSHRL

Following the due process, the same standards applied to past cases under Title VII of the Civil Rights Act of 1964 are adopted in reviewing hostile work environment and harassment claims brought forth under the NYSHRL for claims before October 11, 2019. It is crucial to note that the NYSHRL recognizes both the “hostile work environment” and “quid pro harassment” theories of harassment or discrimination. Furthermore, the NYSHRL also permits the application of the Faragher/Ellerth defense in claims brought forth under the Act prior to October 11, 2019.

Irrespective of whether the harassment is considered pervasive or severe, any form of harassment based on a person’s participation in a protected activity or membership in a protected class is prohibited by the NYSHRL, effective October 11, 2019. Under the NYSHRL, any harassment that subjects a person to inferior employment privileges, conditions, or terms is unlawful. However, after October 11, 2019, the Faragher/Ellerth defense no longer applies, which means that the determination of whether an employer is liable for a harassment claim does not rely upon whether an employee complained about the harassment to the employer. Additionally, an employee is no longer required to demonstrate the existence of a person that can be used to compare how such an employee was treated. However, employers may argue against the perception that the harassing conduct could rise above the level of what would be considered petty slights or trivial inconveniences by a reasonable victim of discrimination.

In our major series titled “New York City Major Labor and Employment Law Update,” we covered, in detail, the need for New York State employers to remain compliant with the NYSHRL’s anti-sexual harassment requirements in their workplaces. Currently, New York State employers are even more pressured to remain compliant following the imposition of new sexual harassment-related requirements under the “2019 New York State Budget Bill.” Some of the new requirements and their relevant laws include:

Mandatory Policy and Training on Sexual Harassment

As provided for under N.Y. Lab. Law § 201-g, employers are required to either develop their own sexual harassment prevention programs and policies or adopt the state-provided “model sexual harassment prevention training program” or the “model sexual harassment prevention policy.” However, an employer’s program must meet or exceed the model policy and training program’s standards. Under these standards, employers are required to provide employees with an electronic or written policy where the following provisions must be featured:

  • A statement that while managers or supervisors who knowingly allow the continuation of sexual harassment and employees who engage in the same will be subject to sanctions, sexual harassment is employee misconduct.
  • A statement, including examples of unlawful conduct, which prohibits sexual harassment.
  • A standard complaint form.
  • A statement that it is unlawful to retaliate against individuals who assist or testify in any NYSHRL proceeding and those who complain of sexual harassment.
  • A statement informing employees of their rights of redress and the available forums for adjudicating complaints judicially and administratively.
  • A procedure outlining how complaint investigation would be conducted confidentially and timely to ensure due process for all parties.
  • Information concerning remedies available to sexual harassment victims, a statement regarding the existence of applicable local law, and the state and federal laws governing sexual harassment.

Moreover, under the new requirements, employees should be provided, at every annual training and during hiring, with a notice written in the employee’s primary language and English outlining both the information delivered during the sexual harassment training program and the employer’s sexual harassment prevention policy. Additionally, while translations of the state-provided model can be found on the New York State government website at New York State, the new requirements mandate that training should be delivered and provided in a language that employees speak. To remain compliant, employers must ensure that while it remains interactive, a sexual harassment prevention training program includes the following:

  • Information about employees’ rights of redress and all available forums through which complaints can be adjudicated.
  • Examples of conduct that would constitute unlawful sexual harassment.
  • A sexual harassment explanation consistent with the guidance issued by the New York State Division of Human Rights and the New York State Department of Labor.
  • Information addressing conduct by supervisors and any additional supervisor responsibilities.
  • Information about state and federal laws under which sexual harassment is prohibited and the remedies available to sexual harassment victims.

In Part X and the next blog under this series, we shall move the discussion forward and look into “Vicarious Liability for Harassment” under both the NYCHRL and NYSHRL.

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.