In recent weeks we have been confronted with various media articles replete with incidents of powerful men accused of sexual harassment, unacceptable sexual comments, and other sexual misconduct in the workplace. Such claims, whether substantiated or not, can cost employees their jobs and careers and it can cost employers unexpected defense costs and disruption of their business operations as they become embroiled in messy litigation.
We read about well-known individuals such as Governor Andrew Cuomo facing multiple women’s claims of sexual harassment that threatens his current position and political future. The well-known law firm of Paul Weiss Rifkind Wharton & Garrison LLP has been hired to investigate the claims. The Governor’s future, to a large extent, depends on the outcome, but already we see challengers sizing up the situation and jockeying for his removal.
Sexual harassment allegations have already caused the downfall of Rep. Tom Reed, (R-NY 23rd District) who will not seek re-election to his position in 2022 and is the focus of a House of Representatives Ethics Committee investigation. The allegations of sexual misconduct have also cost him his bid for Governor.
Black Rock Inc., the world’s largest asset manager, also has hired the law firm of Paul Weiss to conduct an investigation into alleged employee misconduct following a series of accusations of racial and sexual discrimination and harassment inside its workplace.
This list of those accused and under investigation is lengthy but it is not just well-known individuals and high net-worth companies that are the subject of claims. It occurs in all sorts of businesses, large and small. The claims can be against women as well although less prevalent.
As part of your leadership in your company, you must set the tone and work toward creating a culture of inclusiveness, without bias or discrimination, and in particular, a work environment that is free of harassing behaviors. While this article is focused on the New York laws preventing sexual harassment which were amended in 2019 to become more employee friendly as the #metoo movement gained momentum, one needs to be mindful that the non-harassment legislation is intended to cover and prevent harassing behavior premised on one’s race, disability, gender or sexual orientation, ethnicity or any other protected class.
But more than being the right thing to do, it is essential that you take the necessary steps to ensure that your company complies with the New York laws on preventing sexual harassment and by doing so, you significantly raise the odds that your employees and your business will not make the kind of unwanted headlines that others have faced. These recent high-profile cases demonstrate that it is not enough to simply adopt a policy, provide one-time training, and then allow the policies to collect dust. Sexual harassment prevention must be part of a well-planned compliance program.
Now is a good time to revisit your compliance program on sexual harassment prevention:
Compliance Responsibility. This is a major responsibility and will make not only defending a claim easier, but also helps to create the desired culture of a workplace free of harassment. Do you have someone, like a Human Resource Director or Compliance Officer, who is knowledgeable of and has designated responsibility for ensuring compliance with the New York law requirements on sexual harassment training, policies, and complaint form? Are you providing opportunities for the HR Director or Compliance Officer to take advanced workshops and seminar to improve the quality and depth of their oversight?
- Sexual Harassment Prevention Policy. All employers, regardless of size, should have adopted a written policy on sexual harassment prevention no later than October 11, 2019 and it should be reviewed and updated as necessary each year.
a. Does the policy conform to the minimum standards set forth in the law? The requirements are easily accessible on the New York Human Rights Law website.
b. Have you distributed your written policy to each employee, prior to or at the start of their employment with you? If you are changing or updating your policy, every employee should receive the updated policy.
c. Do you have a signed acknowledgement from each employee that confirms that the employee received the policy and acknowledging their responsibility to review it and understand the expected conduct pursuant to the policy? Is that receipt retained in the personnel file of each employee?
d. Does your policy have the required complaint form that provides guidance to employees in how to make a complaint about harassment?
e. Do you have a non-retaliation provision as part of your policy so that each employee and supervisor/manager understand that there can be no retaliatory conduct (discipline or more subtle forms of adverse action) against an employee for reporting a claim of harassment?
- Training. Employers are required to engage in harassment prevention training on an annual basis.
a. Does the training meet or exceeds the New York State minimum standards? What are the trainer’s qualifications? Oftentimes the trainer will expand the training to include other protected forms of harassing behavior that will assist you in defending other forms of harassment claims, such as race or disability.
b. Are you training every year as required by New York State?
c. Do you have a record of the training attendees so that if there is an issue in whether an employee was trained, the business has ready access to records of the training, who conducted the training, what was covered in the training, and who attended? Having a sign-up sheet with a signature or other form of ready verification is important and highly recommended, but not required.
d. Are you providing a link for each employee prior to or by the first day of employment to the state provided training materials so that each employee immediately has the training materials for review before the formal training occurs.
- Act on Complaints and Investigate and Take Immediate Corrective Action.
a. When a complaint if made, whether or not it is in in writing on the complaint form provided as part of the Policy, act on it.
b. Depending on the nature of the complaint, either have the trained Human Resources or Compliance Officer investigate the complaint, gather the facts, identify and interview witnesses, and determine next steps or retain outside counsel to conduct the investigation. Do not interject your own views but be as objective in reporting the facts.
c. Make a decision that is substantiated by the facts.
d. Report the outcome to the accuser and implement any appropriate corrective action.
e. If there is no substantiation of the complaint, the employer may wish to engage in additional training or counseling to avoid the occurrence of future complaints.
By now, compliance with New York law for sexual harassment prevention should be a routine part of your business operations. If it is not, there are several ways to make it an integral part of your business, which will minimize your liability exposure. Ultimately, how seriously employers take compliance will determine whether the legislative changes are actually making a difference. Previously tolerated social norms and behavior in the workplace are no longer acceptable and your business should be in the forefront of that change. Look to our legal alerts, newsletter articles and training opportunities to enhance your compliance efforts.