Combating Sexual Harassment: Frequently Asked Questions

TOP Combating Sexual Harassment: Frequently Asked Questions
Overview
WYSIWYG

**The state has received hundreds of very constructive and substantive comments from a wide range of individuals, advocates, industries, worker groups, businesses and business organizations. The comments are being reviewed and necessary revisions being considered, with finalized documents expected to be released in the near future.

Q1. What is sexual harassment?

A1. Sexual harassment can consist of unwanted verbal or physical sexual advances, sexually explicit statements, remarks that are offensive or objectionable to the recipient, or other harassing conduct which is directed at the recipient because of the recipient’s sex. Sexual harassment is a form of sex discrimination prohibited under the New York State Human Rights Law, Title VII of the federal Civil Rights Act of 1964, and additionally, various local laws.

Sexual Harassment may include:

  • Physical assaults of a sexual nature, such as:
    • Touching, pinching, patting, grabbing, brushing against another employee’s body or poking another employees’ body;
    • Rape, sexual battery, molestation or attempts to commit these assaults.
  • Unwanted sexual advances or propositions, such as:
    • Requests for sexual favors accompanied by implied or overt threats concerning the victim’s job performance evaluation, a promotion or other job benefits or detriments;
    • Subtle or obvious pressure for unwelcome sexual activities.
  • Sexually oriented gestures, noises, remarks, jokes or comments about a person’s sexuality or sexual experience, which create a hostile work environment.
  • Sexual or discriminatory displays or publications anywhere in the workplace, such as:
    • Displaying pictures, posters, calendars, graffiti, objects, promotional material, reading materials or other materials that are sexually demeaning or pornographic.
  • Hostile actions taken against an individual because of that individual’s sex, such as:
    • Interfering with, destroying or damaging a person’s workstation, tools or equipment, or otherwise interfering with the individual’s ability to perform the job;
    • Sabotaging an individual’s work;
    • Bullying, yelling, name-calling.

 

  

 

Q2. Where can sexual harassment happen?

A2. Sexual harassment can happen anywhere. The Human Rights Law prohibits this conduct specifically in employment, housing, educational institutions, public accommodations, and the workplace.

  

 

 

Q3. What is “quid pro quo” harassment?

This type of sexual harassment also occurs when a person in authority tries to trade job benefits for sexual favors. This can include hiring, promotion, continued employment or any other terms, conditions or privileges of employment. 

 

 

 

Q4. Who can be a target of sexual harassment?

A4: Sexual harassment can occur between any individuals, regardless of their sex. New York Law protects employees (including unpaid interns and trainees) and non-employees (including independent contractors) and those employed by companies contracting to provide services in the workplace. A perpetrator of sexual harassment can be a superior, a subordinate, a coworker or anyone in the workplace including an independent contractor, contract worker, vendor, client, customer or visitor.

NOTE: The term “sex” also includes sexual orientation, gender identity and the status of being transgender.

 

 

  

Q5. What is sex stereotyping?

A5: Sex stereotyping occurs when conduct or personality traits are considered inappropriate simply because they may not conform to other people's ideas or perceptions about how individuals of either sex should act or look. Harassing a person because that person does not conform to gender stereotypes as to “appropriate” looks, speech, personality or lifestyle is sexual harassment. Harassment because someone is performing a job that is usually performed, or was performed in the past, mostly by persons of the opposite sex, is sex discrimination.

0
For Workers
For Workers
WYSIWYG

Q1. I think I’ve been sexually harassed.  What should I do?

A1. If you believe that you have been sexually harassed, you should report the conduct to your employer (if you feel comfortable). If you are a non-employee, you should also report the conduct to your own employer, temporary agency or placement agency. 

You can also, simultaneously or subsequently, file a complaint with the New York State Division of Human Rights. Please note: a complaint must be filed with the Division of Human Rights within one year of the alleged discriminatory act. 

For more information, see the Division’s brochure entitled “Sexual Harassment.”

  

 

Q2. How can I file a complaint with the Division of Human Rights?

A2.  There are several ways to file a complaint with the Division:

  • Visit the Division’s website, at www.dhr.ny.gov/complaint and download a complaint form. Completed complaints must be signed before a notary public, and returned to the Division (by mail or in person);
  • Or, stop by a Division office in person to file a complaint.  Every Division Office has a notary public.
  • You may also contact one of the Division’s offices by telephone or by mail, to obtain a complaint form and/or other assistance in filing a complaint. The division has [#] offices across the State of New York and their contact info can be found at [https://dhr.ny.gov/contact-us].

For more information or to find the regional office nearest to your home or place of employment, visit our website at: www.dhr.ny.gov.

 

Q3. Can I be retaliated against if I complain?

Q3. New York’s Human Rights Law prohibits retaliation against employees or non-employees, either for filing an internal complaint with the employer and/or for filing a complaint with the Division. If you feel you are a victim of retaliation, you should contact the Division and file a complaint.

  

 

Q4. Is my employer covered by the Human Rights Law?

A4. Yes. When it comes to sexual harassment, the Human Rights Law requires ALL employers in New York State, regardless of the number of employees, to provide a workplace free from sexual harassment.

 

Non-Employees in a Workplace 

Q1: I am not directly employed by the company where I was harassed, am I still covered?

A1: The Human Rights Law was amended effective April 12, 2018, to protect any non-employees from harassment at an employer’s work location. This means that as of April 12, 2018, an employer may be held liable for the sexual harassment of a non-employee who is (or is employed by) a contractor, subcontractor, vendor, consultant, or anyone providing services in the workplace.  Protected non-employees include persons commonly referred to as independent contractors, “gig” workers, and temporary workers.  Also included are persons providing equipment repair, cleaning services, or any other services provided pursuant to a contract with the employer.

  

 

Q2: I work for a maintenance contractor and I clean the offices of a business.  An employee of the building, who is not employed by the business I clean for, is asking me repeatedly for dates.  I don’t like this behavior.  What can I do?

A2: The business that operates is your worksite is required to provide for you a harassment-free workplace.  You should report the conduct to the business, and also to your own employer.  Both are responsible to address the problem. You may also file a complaint with the Division of Human Rights. 

  

 

Q3: The copier repair person always makes sexual jokes which are upsetting to me.  My boss says that she can’t do anything about it.

A3: Your employer is required to provide a workplace free from sexual harassment, regardless of who the harasser is.  Your employer is required to take appropriate action based on your complaint. You may also file a complaint with the Division of Human Rights. 

 

 

Q4: I am being sexually harassed by a temporary worker.  I complained, but my supervisor says he doesn’t have any authority over the temps.

A4: Your supervisor is required to take your complaint to someone who can investigate and take corrective action. You can complain to another supervisor or manager at your employer, file a complaint with the Division of Human Rights, or both.

 

 

Q5: I perform work as an independent contractor, and much of my work is performed off the premises of the business.  However, when I come into the office to meet with the person who oversees my work, he tries to start an unwelcome sexual relationship with me.  He is the only person at the business that I have any contact with, and I don’t know how to complain.

A5: The business should have informed you how to report such conduct.  You can complain to a supervisor or manager at the business, file a complaint with the Division of Human Rights, or both.

0
For Employers
For Employers
WYSIWYG

 

Policy

 

Q1. How can employers provide their policy to employees?

 

A1. Employers must provide employees with their policy in writing.  No signed acknowledgement is required, but employers are encouraged to obtain a signed acknowledgement.

 

 

 

Q2. Can employers provide their policy to employees electronically?

 

A2. Yes, but workers must be able to access the employer’s policy on a computer provided by the employer during work time and be able to print a copy for their records.

 

 

 

 

Training

Q1. By what date do all of my employees need to be trained?

A1. All employees must complete the model training (link) or a comparable training that meets the minimum standards (link) by January 1, 2019.

 

 

Q2. How often must employees receive sexual harassment training?

A2. Employees must be trained at least once per year. In subsequent years, this may be based on the calendar year, anniversary of each employee’s start date or any other date the employer chooses.

 

 

Q3. What about new employees or those who start after January 1?

A3. All employees must complete sexual harassment training within 30 calendar days of starting their job.

 

 

Q4. What if an employee only works part-time?

A4. Employers are required to ensure that all employees receive training. 

 

Q5. What about employees who received the same training from a prior employer within the past year?

A5. It is your responsibility to ensure that all employees are trained to your company standards and familiar with your company practices. If both you and the individual’s former employer use the same unmodified state model training or one of similar substance (for example, shared training provided by a labor union or employer group), you may consider the employee trained. However, even if the same training is used, may still wish to train all new employees to your standards.

 

 

Q6. What does “interactive” mean?

New York State law requires all sexual harassment training to be interactive. It requires some form of employee participation, meaning the training may:

  • Be web-based with questions asked of employees as part of the program;
  • Accommodate questions asked by employees;
  • Include a live trainer made available during the session to answer questions; and/or
  • Require feedback from employees about the training and the materials presented.

 

 

Q7. What happens if some employees fail to take the training despite an employer’s best efforts to make it available, and to require everyone to take it?

A7. Employers are required to ensure that all employees receive training on an annual basis.  Employers may take appropriate administrative remedies to ensure compliance.

 

 

Q8. What about temporary / transient employees? If someone just works for one day for the employer, or if someone works for just one day in NY?

A8. Employers are required to ensure that all employees receive training. 

0
Mandatory Arbitration
Mandatory Arbitration
WYSIWYG

In advancing the women’s agenda as part of the 2018 budget, Governor Cuomo signed legislation that put into place the strongest and most comprehensive anti-sexual harassment protections in the nation, combatting the secrecy and coercive practices that have enabled this unacceptable behavior for far too long.

 

Q1: What is a mandatory arbitration clause in the context of the new law concerning sexual harassment?

A1: A mandatory arbitration clause is a requirement in any written contract that: (1) when faced with contract disputes, compels parties to seek arbitration before going to court and (2) makes facts found at arbitration final and not subject to review by the courts.  More precisely, in the words of the statute:

The term “mandatory arbitration clause” shall mean a term or provision contained in a written contract which requires the parties to such contract to submit any matter thereafter arising under such contract to arbitration prior to the commencement of any legal action to enforce the provisions of such contract and which also further provides language to the effect that the facts found or determination made by the arbitrator or panel of arbitrators in its application to a party alleging an unlawful discriminatory practice based on sexual harassment shall be final and not subject to independent court review.

 

 

Q2: What is a prohibited clause?

A2: Under the new law, a prohibited clause means any requirement in any contract that requires mandatory arbitration to resolve any sexual harassment claim.  Specifically, as stated in the statute:

The term “prohibited clause” shall mean any clause or provision of any contract which requires as a condition of the enforcement of the contract or obtaining remedies under the contract that the parties submit to mandatory arbitration to resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.

The ban on prohibited clauses does not “prohibit an employer from incorporating a non-prohibited clause or other mandatory arbitration provision within such contract, that the parties agree upon.”

 

 

Q3: What does the new law say about such mandatory arbitration clauses?

A3: The law generally bans new contracts from containing any prohibited clause, and makes such prohibited clauses null and void, with certain exceptions summarized below.

 

 

Q4: When will that new ban on mandatory arbitration clauses take effect?

A4: The new ban will apply to contracts entered into on or after July 11, 2018.[1] 



Q5: What are the exceptions to the ban?

A5: The law expressly recognizes that: (1); “the provisions declaring prohibited clauses null and void do not apply “where inconsistent with federal law;” and (2) collective bargaining agreements will be controlling in cases where there is a conflict between the such agreement and the new law.

 

 

Q6: Is the law limited to employers with four or more employers?

A6: No, the law’s ban on prohibited clauses applies to all contracts.  The law defines the term employer by reference to the state Human Rights Law, which defines employers to include all employers in cases involving sexual harassment.[2]

 

 

Q7: Where can I find the text of the new ban on prohibited mandatory arbitration clauses?

A7: The relevant provisions off the new law can be found at Civil Practice Law and Rules § 7515, which is quoted below:

 § 7515. Mandatory arbitration clauses; prohibited. (a) Definitions. As used in this section:

1. The term "employer" shall have the same meaning as provided in subdivision five of section two hundred ninety-two of the executive law.

2. The term "prohibited clause" shall mean any clause or provision in any contract which requires as a condition of the enforcement of the contract or obtaining remedies under the contract that the parties submit to mandatory arbitration to resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.

3. The term "mandatory arbitration clause" shall mean a term or provision contained in a written contract which requires the parties to such contract to submit any matter thereafter arising under such contract to arbitration prior to the commencement of any legal action to enforce the provisions of such contract and which also further provides language to the effect that the facts found or determination made by the arbitrator or panel of arbitrators in its application to a party alleging an unlawful discriminatory practice based on sexual harassment shall be final and not subject to independent court review.

4. The term "arbitration" shall mean the use of a decision making forum conducted by an arbitrator or panel of arbitrators within the meaning and subject to the provisions of article seventy-five of the civil practice law and rules.

(b) (i) Prohibition. Except where inconsistent with federal law, no written contract, entered into on or after the effective date of this section shall contain a prohibited clause as defined in paragraph two of subdivision (a) of this section.

(ii) Exceptions. Nothing contained in this section shall be construed to impair or prohibit an employer from incorporating a non-prohibited clause or other mandatory arbitration provision within such contract, that the parties agree upon.

(iii) Mandatory arbitration clause null and void. Except where inconsistent with federal law, the provisions of such prohibited clause as defined in paragraph two of subdivision (a) of this section shall be null and void. The inclusion of such clause in a written contract shall not serve to impair the enforceability of any other provision of such contract.

(c) Where there is a conflict between any collective bargaining agreement and this section, such agreement shall be controlling.

  

 

0
Nondisclosure Agreements
Nondisclosure Agreements
WYSIWYG

In advancing the women’s agenda as part of the 2018 budget, Governor Cuomo signed legislation that put into place the strongest and most comprehensive anti-sexual harassment protections in the nation, combatting the secrecy and coercive practices that have enabled this unacceptable behavior for far too long.

Q1: What is a nondisclosure agreement in the context of the new law concerning sexual harassment?

A1: Under the new law, a nondisclosure agreement is defined to include any resolution of any claim involving sexual harassment that would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment.

 

 

Q2: What will the new law do about such nondisclosure agreements?

A2: The new law will generally ban such nondisclosure agreements, except for those where the person who complained prefers such a nondisclosure agreement.  Specifically, the new law takes away the authority of employers to include, or agree to include, any term or condition that would prevent the disclosure of the underlying facts and circumstances of the harassment unless the condition of nondisclosure is the preference of the person who complained. 

 

 

Q3: When will the ban on nondisclosure agreements take effect?

A3: On July 11, 2018.  That is the date when employers will lose their authority to include, or agree to include, such terms or conditions of nondisclosure of the underlying facts and circumstances of the harassment.

 

 

Q4: How do the parties establish that confidentiality is the complainant’s preference?

A4:  The law requires that “such preference shall be memorialized in an agreement signed by all parties.”  

 

 

Q5:  Is there a particular process that must be followed for memorializing the complainant’s preference?

A5: Yes, the law spells out and requires the following three-step process and timeframe:

 

  1. Any such term or condition must be provided to all parties, and the person who complained shall have 21 days from the date such term or condition is provided to consider such term or condition.  
  1. If after 21 days, such term of condition is the preference of the person who complained, such preference shall be memorialized in an agreement signed by all parties.
  1. For a period of 7 days following the execution of an agreement containing such a term, the person who complained may revoke the agreement and the agreement shall not become effective or be enforceable until such revocation period has expired.

 

 

Q6: Can the employer initiate the process by suggesting a term or condition of confidentiality?

A6: As long as the statutory process and timeline summarized above is followed, the law does not prohibit the employer from initiating that process. 

 

 

Q7: Does the process established under the law mean that the parties will need to enter into two separate documents providing for nondisclosure: 1) an agreement that memorializes the preference of the person who complained, and 2) whatever documents incorporate that preferred term or condition as part of a larger overall resolution between the parties?

A7: Yes, as summarized above, starting July 11, 2018, employers will lose the ability to include or agree to include such nondisclosure language in documents resolving sexual harassment matters unless the complainant’s preference for that language has been memorialized in an agreement signed by all parties after following the three-step procedure summarized above.

 

 

Q8: Where can I find the text of the new ban on nondisclosure agreements in cases involving sexual harassment

A8: The relevant provisions of the new law are identified and quoted below: 

CPLR§ 5003-b. Nondisclosure agreements. 

Notwithstanding any other law to the contrary, for any claim or cause of action, whether arising under common law, equity, or any provision of law, the factual foundation for which involves sexual harassment, in resolving, by agreed judgment, stipulation, decree, agreement to settle, assurance of discontinuance or otherwise, no employer, its officer or employee shall have the authority to include or agree to include in such resolution any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the plaintiff’s preference. Any such term or condition must be provided to all parties, and the plaintiff shall have twenty-one days to consider such term or condition. If after twenty-one days such term or condition is the plaintiff’s preference, such preference shall be memorialized in an agreement signed by all parties. For a period of at least seven days following the execution of such agreement, the plaintiff may revoke the agreement, and the agreement shall not become effective or be enforceable until such revocation period has expired. 

 

General Obligations Law 5-336. Nondisclosure agreements.

Notwithstanding any other law to the contrary, no employer, its officers or employees shall have the authority to include or agree to include in any settlement, agreement or other resolution of any claim, the factual foundation for which involves sexual harassment, any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant’s preference. Any such term or condition must be provided to all parties, and the complainant shall have twenty-one days to consider such term or condition. If after twenty-one days such term or condition is the complainant’s preference, such preference shall be memorialized in an agreement signed by all parties. For a period of at least seven days following the execution of such agreement, the complainant may revoke the agreement, and the agreement shall not become effective or be enforceable until such revocation period has expired.

0