Every employer in New York State is required to provide employees with sexual harassment prevention training. It is important to remember sexual harassment can occur between any two or more individuals, regardless of their sex, gender or status of being transgender. Sexual harassment is unwelcome conduct of a sexual nature or an action directed at an individual because of an individual’s sex. This harassment is not to be taken lightly. A sexually harassing, hostile work environment may consist of words, signs, jokes, pranks, intimidation or physical violence of a sexual nature or those that are directed at an individual because of that individual’s sex. Sexual harassment may also consist of any unwanted verbal or physical advances, sexually explicit derogatory statements or sexually discriminatory remarks made by someone which are offensive or objectionable to the recipient. It can also happen when a person in authority tries to trade job benefits for sexual favors like hiring, a promotion, continued employment or other terms, conditions or privileges of employment.
Many people think sexual harassment in the workplace only pertains to employees, but that is not the case. A perpetrator of sexual harassment in the workplace does not solely include individuals who work at the establishment, such as a superior, a subordinate or a coworker. It also expands to technically anyone in the workplace. For instance, an independent contractor, a contract worker, a vendor, a client, a customer or even a visitor could be the perpetrator or the recipient of sexual harassment. Sexual harassment between any of the above-mentioned individuals is unacceptable, and if physical touching, coerced physical confinement or coerced sex acts are involved, those can be considered criminal acts.
Sexual harassment training is mandatory for employers to provide for their employees in New York State and the requirement to adopt a sexual harassment prevention policy. If an employer chooses not to adopt the model policy, the employer must ensure the policy meets or exceeds the minimum standards.
Every policy must meet or exceed the following standards, which you can find on the NYS website:
- prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
- provide examples of prohibited conduct that would constitute unlawful sexual harassment
- include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws
- include a complaint form
- include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties
- inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
- clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue
- clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful
Every claim of sexual harassment is determined in accordance with existing legal standards, considering the facts and circumstances of the claim and the existence of an effective anti-harassment policy and procedure. We recommend employers visit the NYS website to download the standards, the sexual harassment prevention model policy, the sexual harassment prevention toolkit, and the poster to hang at your workplace.
Don’t hesitate to get in touch with Gleason Tax Advisory if you have any questions or concerns about sexual harassment in the workplace. 716-720-5339.