Tag: policies

New York GENDA

New York GENDA Amends Human Rights Law

On January 25, 2019, New York Governor Andrew Cuomo signed an amendment to State law banning employment discrimination based on gender identity or expression. This action codifies employee protections that were arguably already in place through New York Division of Human Rights regulations. The New York State Assembly had passed the Gender Expression Non-Discrimination Act (GENDA) 10 times before, but this was the first time the legislation gained Senate approval.

What Is GENDA?

GENDA amends the New York State Human Rights Law to include protections for gender identity and expression. These protections are not limited to employment, but also apply in the areas of licensing, labor organizations, training programs, public accommodations, credit, housing, and commercial real estate transactions.

The legislation also amends other State statutes, including in the areas of education and criminal law.

GENDA defines “gender identity or expression” to mean “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”

For most purposes, GENDA takes effect on February 24, 2019. The amendments to the penal law will apply beginning November 1, 2019.

What Does GENDA Mean for Employers?

The amendment to the Human Rights Law won’t necessarily change anything for employers. In 2016, the Division of Human Rights, at Governor Cuomo’s direction, had already issued regulations interpreting the protected category “sex” to include discrimination on the basis of gender identity. The recent amendment essentially codifies those regulatory interpretations into the statute.

The regulations defined “sex” to include “gender identity and the status of being transgender.”

They defined “gender identity” as “having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.”

Thus, there are slight differences between the 2016 regulatory definitions and the new statutory ones. However, it’s not clear that the intended scope of the protections differs materially.

Whether under the regulations or the new statutory terms, covered employers with employees in New York cannot discriminate based on gender identity. Employers should assume broad interpretation of that term. Prohibited discrimination includes failure to hire, discipline, discharge, and other adverse employment actions based on gender identity or expression. The law also prohibits workplace harassment on this basis.

Could GENDA Reduce Workers’ Rights?

By codifying gender identity as a characteristic different than sex, GENDA raises the interesting question of whether harassment based on gender identity constitutes “sexual harassment.” That question is potentially relevant in determining the scope of protection under the New York Human Rights Law.

In most respects, the New York Human Rights Law applies to employers with at least 4 employees. But the law prohibits all New York employers with as few as 1 employee from engaging in sexual harassment.  Now that the terms “sex” and “gender identity” are codified separately, it might be that the law technically does not ban employers with fewer than 4 employees from gender identity harassment.

Similarly, 2018 amendments extended protection from sexual harassment to non-employees in the workplace. Did/does this expansion apply to gender identity?

Caution: These nuanced legal distinctions are not ones that employers should deliberately rely on as justification for harassment! If nothing else, it is unclear how the courts would rule on these nuances.

Impact on Sexual Harassment Prevention Requirements

Beyond pure technicalities, GENDA creates reasonable confusion regarding New York’s sexual harassment policy and training requirements. The Department of Labor’s guidance on these new obligations for all New York employers relies on Division of Human Rights guidance pre-dating GENDA. That earlier guidance makes express reference to “sexual harassment that occurs because the victim is transgender.”

Moreover, the State’s model sexual harassment policy provides that “Sexual harassment includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity and the status of being transgender.”

As mentioned above, there might now be a new statutory basis for an argument that “sexual harassment” does not include harassment based on most of those characteristics. Then again, “sexual orientation” has long been separately identified in the Human Rights Law as a basis of protection from discrimination, suggesting that “sexual harassment” can include harassment based on statutory categories other than “sex.”

Overall, given the clear legislative intent to expand employee protections, employers should probably continue to assume an expansive reading of “sexual harassment” and broadly cover all of these areas that could be deemed to touch on “sex” or gender in some way.

Update Your Policies

Even if GENDA has not substantively changed employers’ obligations and employees’ rights, employers should at least update their non-discrimination and anti-harassment policies to include the new statutory terms. The 2016 regulations caused some employers to make similar changes, but others left the word “sex,” subject to whatever it meant under the law. Both approaches warrant revision at this time. The list of protected categories in New York should now specifically include “gender identity and expression.”

 

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Sexual Harassment Statistics

EEOC Releases 2018 Sexual Harassment Statistics

On October 4, 2018, the U.S. Equal Employment Opportunity Commission released its preliminary fiscal year 2018 sexual harassment statistics. The agency’s announcement reinforces its strong stance against all forms of workplace harassment in response to the #MeToo movement.

EEOC charges alleging sexual harassment increased by more than 12% from fiscal year 2017. EEOC sexual harassment lawsuits also increased by more than 50%.

2017 Sexual Harassment Statistics

Based on final sexual harassment statistics for fiscal year 2017, the number of charges alleging sexual harassment had declined compared to the year before.

In FY 2017, the EEOC received 6,696 charges alleging sexual harassment. It obtained $46.3 million on behalf of sexual harassment victims.

Click here for more on FY 2017 EEOC data.

FY 2018

The 12% increase this year indicates that employees filed approximately 7,500 sexual harassment charges in FY 2018. That would represent the highest level since 2012.

During the fiscal year ending September 2018, the EEOC filed 66 harassment lawsuits. 41 of those included allegations of sexual harassment. These lawsuits involve a wide variety of employers, including those in the healthcare, transportation, manufacturing, and customer service industries.

Between litigation and administrative enforcement, the EEOC recovered nearly $70 million for employees alleging sexual harassment.

[Update: The EEOC has finalized these statistics. Click here to find out what changed.]

Respectful Workplaces

In its October 4, 2018 press release, the EEOC also discussed the “Respectful Workplaces” training program that it launched last year. This program “teaches skills for employees and supervisors to promote and contribute to respect in the workplace.”

Over 9,000 workers in both the public and private sectors participated in the training during the 2018 fiscal year. Another 13,000 employees participated in EEOC anti-harassment compliance training.

Ongoing Efforts

The EEOC stressed that it would continue to fight actively against all forms of harassment in the workplace.

“We have been traveling the country, spreading the word about what the EEOC is doing and the resources we have to offer,” said Commissioner Chai R. Feldblum, Co-Chair of the Select Task Force on the Study of Harassment in the Workplace.

“I am so proud of the EEOC staff who stepped up to the heightened demand of the #MeToo movement to make clear that workplace harassment is not only unlawful, it is simply not acceptable,” added Acting Chair Victoria A. Lipnic. “As the agency with expertise, as the enforcer of the law, and as an educator, the EEOC has continued to lead the way to achieve the goal of reducing the level of harassment and to promote harassment-free workplaces.”

Employers Should Take Note

These sexual harassment statistics demonstrate that employers must take this issue seriously to avoid liability.

It is not just the number of complaints that is going up. Overall, for charges alleging harassment, reasonable cause findings increased from 970 in FY 2017 to nearly 1,200 in FY 2018.

To help avoid joining these statistics, employers should both implement and effectively administer anti-harassment policies and procedures. Best practices include periodically training all employees about what constitutes workplace harassment and how to prevent and remedy it.

New York Model Sexual Harassment Policy Training

Update: New York’s Model Sexual Harassment Policy & Training Program

In late August 2018, New York State issued initial guidance on the new requirements that all employers issue a written sexual harassment policy and provide annual training to every employee. On October 1, 2018, the State published updated guidance, including a revised model sexual harassment policy and training program. Here’s a quick look at the most significant changes from the State.

For more detailed analysis, check out our free webinar on this topic.

Deadlines

There is no change in the deadline for all New York employers to issue a written sexual harassment policy to all employees. Every employer with at least one employee in New York State must do so by October 9, 2018.

However, the State has substantially altered the deadline to complete the first annual sexual harassment prevention training for all employees. Initially, the State indicated that every employer must complete this training by January 1, 2019. It is likely that many employers and business groups told the State that this deadline was impractical, especially with some industries (e.g., retail) experiencing their highest business volume at year end.

Now, employers are not required to complete the first round of training until October 9, 2019. That allows a full year from the effective date of the new law. Naturally, this removes much of the urgency. But employers should not wait too long to determine how they will satisfy the training requirement.

Also, the State previously suggested that employers must train new employees within 30 days of hire. Probably because the new law does not require anything other than annual training, the State has dropped this parameter. The updated guidance only encourages employers to train new employees as soon as possible. This makes sense, of course, as the goal of the training should be to prevent sexual harassment, including by or against new employees.

Changes to the Model Sexual Harassment Policy

Overall, in my opinion, the revised model sexual harassment policy is better than the initial draft. The State considered many comments from employee and employer constituents toward improving the policy. Here are just some of the changes.

The policy no longer purports to be a “zero tolerance” policy. As I have explained before, “zero tolerance” anti-harassment policies are a good idea. However, problems can arise when it is not clear what “zero tolerance” means. Rather than attempt to clarify the potential confusion, the model sexual harassment policy now eliminates the concept.

The State has also expanded the description of sexual harassment to include harassment based on “self-identified or perceived sex” and “gender expression.”  Previously, the policy only specifically referenced harassment based on sex, sexual orientation, gender identity, and the status of being transgender.

Regarding investigations of sexual harassment complaints, the model policy now indicates that the investigation will be completed “as soon as possible” rather than “within 30 days.” This section also now acknowledges that the steps in an investigation “may vary from case to case.”

In addition, the examples of sexual harassment were modified to include kissing and hugging along with “sex stereotyping.” And the policy now clarifies that its “retaliation provision is not intended to protect persons making intentionally false charges of harassment.”

The New York State Model Sexual Harassment Policy and related forms and guidance are available here.

Changes to the Model Complaint Form

In addition to the model policy, the State updated its model sexual harassment complaint form.

The new complaint form is more streamlined than the original. It eliminates two types of problematic questions from the initial draft. The form no longer asks the complainant to include their home contact information. And it no longer asks the complainant to identify whether they have filed a legal complaint or hired an attorney related to the situation. Instead, the new complaint form concludes with the option to identify their legal counsel if the complainant would like the employer to “work with them.”

Like the model policy, employers don’t have to use the model complaint form. However, the law does require that every employer have a sexual harassment complaint form available for employees to use.

Should Employers Adopt New York’s Model Sexual Harassment Policy?

Let’s face facts. Many employers will use the model policy, along with the model complaint form. But, ideally, your organization would probably be better off with a customized policy.

The model policy has some things going for it. First, it’s guaranteed to satisfy the new State law. Second, it’s cheap and easy. Just download and insert the company name, and you have a policy.

But, there are some downfalls to the model policy. First, it wasn’t prepared with your workforce specifically in mind. It’s a one-size-fits-all policy. Even the State acknowledges the wisdom of tailoring the policy to your industry, for example. Second, it may not fit with your other existing policies. Although the law doesn’t require it, employers should also have policies regarding other forms of harassment (e.g., based on race, age, etc.). Is that policy consistent with the State’s model sexual harassment policy?

If you have the resources, consider doing more than simply handing out the model policy to every employee. Or, if time is a problem, an employer could start with the model policy to stay compliant as of October 9th and follow up later with a revised policy that better serves its purposes. Remember, of course, that beyond satisfying the New York policy requirement, the ultimate goal is to prevent sexual harassment effectively.

 

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