September 27, 2018
The New York Civil Liberties Comment on the New York State Model Sexual Harassment Prevention Policy, Complaint Form, and Training Materials
Thank you for the opportunity to provide comments on New York State’s model sexual harassment prevention policy, complaint form, and training materials issued pursuant to Section 201-G of the Labor Law. At this historic moment of reckoning with harassment’s continuing harms, we commend New York State for leading the way with “best practices” to eradicate it. The elimination of workplace sexual harassment is essential to achieving equality for all New Yorkers.
The New York Civil Liberties Union and American Civil Liberties Union are non-profit, non-partisan organizations committed to ensuring full equality for members of historically marginalized groups, including people of color, women, immigrants, people with disabilities, and lesbian, gay, bisexual, and transgender people. The ACLU Women’s Rights Project, founded in 1972 by Ruth Bader Ginsburg, has been a leader in the legal battles to ensure women’s full equality in American society.
Both organizations have represented in litigation workers facing sex discrimination, including sexual harassment, for decades. We have also provided counsel to legislative and executive branch officials considering workplace sexual harassment reform measures on the federal, state, and local levels. We write to share our expertise and offer suggestions for further strengthening the draft sexual harassment materials.
I. The Model Materials Should be Made Available for Comment in Additional Languages
The model policy, complaint form, and training materials are currently only available in English. Yet New York is home to nearly 4.4 million immigrants and 30 percent of New Yorkers speak a language other than English. Immigrant workers are particularly vulnerable to sexual harassment given their overrepresentation in low-wage fields such as food services, cleaning services, and personal care services.
To ensure that all employees, including the most vulnerable, have an opportunity to comment on the model policy, complaint form, and training materials, we urge the drafters to make these materials available in all languages spoken by a substantial fraction of New Yorkers and to extend the comment deadline. At minimum, the model
materials should be made available in Spanish.
II. The Drafters Should Correct Internal Inconsistencies Between the Model Materials
There are a disturbing number of internal inconsistencies between the definitions of key terminology provided in the model materials, especially between the “Sexual Harassment Policy for All Employers in New York State” (the “model policy”) and the “Model Sexual Harassment Prevention Training” (the “model training”). The model materials should be redrafted with careful attention to clear, accessible, and uniform definitions of all key terms to ensure that employees and employers understand the rights and remedies available under the policy.
In particular, the section entitled “What is ‘Sexual Harassment’?” on pages 2-4 of the model policy diverges radically from the section by the same name on pages 9-11 of the model training. For example, the model training contains a section called “Sex Stereotyping” that is entirely absent from the model policy. As described further in the next section, we strongly encourage the drafters to include the section on sex stereotyping in the model policy.
The model training also omits certain crucial examples of sexual harassment that are found in the model policy, including the first and third bullet points on page 3 of the model policy describing “physical assaults of a sexual nature” and “sexually oriented gestures, noises, remarks, jokes or comments about a person’s sexuality or sexual experience.” Because the model policy includes vital information that is missing from the model training, and vice versa, we urge the drafters to carefully review and expand definitions provided in both documents rather than adopt definitions provided in one or the other document wholesale.
III. The Model Policy Should Recognize Additional Forms of Harassment of a Non-Sexual Nature
We appreciate the model policy’s recognition that “[s]exual harassment includes harassment on the basis of sex, sexual orientation, gender identity and the status of being transgender.” We urge the drafters to amend the model policy to also recognize that sexual harassment includes harassment based on an individual’s non-conformance with social or cultural expectations of how men and women should act.
As noted above, the model training document already includes a section discussing sex stereotyping harassment, yet this section is conspicuously absent from the model policy. As discussed further below, the model policy should include concrete, detailed examples of sex stereotyping harassment, akin to examples 3 and 6 in the “case studies” section of the model training.
Additionally, while the policy includes “examples of harassment” on page 3 that illustrate harassment stemming from sex- or gender-based hostility, we urge that the “What is ‘Sexual Harassment’?” section be amended to state specifically that harassment need not be expressly sexual to be either illegal or prohibited under the policy.
Should the model policy’s framers wish to go even further in clarifying the definition, they could outline the three overarching categories of harassment addressed by the policy: (1) Unwanted sexual attention; (2) Sexual coercion, defined as unwanted attention coupled with job-related bribes or threats; and (3) Sex- and gender-based harassment, which conveys negative attitudes towards individuals based on their sex, sexual orientation, or gender identity.
We further urge the drafters to expand the definition of sexual harassment in all of the model materials to include harassment based on an individual’s pregnancy, childbirth, or related medical conditions, including lactation. The definition should also include harassment on the basis of reproductive health decisions, including the decision to have an abortion, use contraception, or use infertility treatment to start a family.
Additionally, as part of the recognition of sex stereotyping harassment, the materials should recognize sex-stereotyped assumptions about family responsibilities, such as the assumption that women are primary caregivers and fathers should not take parental leave.
IV. The Model Policy Should Provide Additional Examples of Sexual Harassment
We applaud Section 201-G of the Labor Law for requiring the model sexual harassment policy to “provide examples of prohibited conduct that would constitute unlawful sexual harassment.” The model sexual harassment policy does provide a list of prohibited conduct that could constitute sexual harassment on page 3. It does not, however, include any examples of actual factual scenarios that could constitute sexual harassment, akin to the “case studies” provided on pages 17-24 of the model training.
We urge the drafters to amend the model policy to include a range of detailed examples of sexual harassment, including examples from industries with particularly high rates of sexual harassment, such as the restaurant, hospitality, and retail industries. The model policy should also include examples of harassment by third parties such as customers or vendors. Finally, the drafters should encourage employers adopting the model materials to modify the examples so that they are industry-specific.
V. The Model Materials Should Provide Further Information on Retaliation
We urge the drafters to expand the definition of retaliation in both the model policy and the model training. Both model materials provide a list of protected activities, yet neither provides a list of retaliatory conduct.
We suggest including the following list of retaliatory conduct:
• disadvantageous transfer or assignment (including where the new position may have the same pay, title, or job grade, but is objectively less desirable in terms of prestige, working conditions, schedule, or potential for advancement);
• refusal to transfer;
• negative evaluations and reports;
• denial of pay raise or other benefit;
• co-worker retaliatory harassment (where supervisors either (1) orchestrated
the harassment or (2) knew about the harassment and acquiesced in it in such
a manner as to condone and encourage the co-workers’ actions);
• asking an employee to withdraw his or her complaint, especially if the
employee feels “intimidated” or “frightened”;
• silent treatment; and
• negative reference for future employment
The model materials should also encourage that, upon receiving a complaint of harassment, the employer adopt a written non-retaliation plan. This novel measure was implemented by the New York Assembly under its 2016 anti-harassment policy (attached hereto for reference as Exhibit A); it has been extremely effective in encouraging complainants to come forward11 and in reducing the reported incidence of retaliation.
We suggest the following language: “Upon receiving a complaint of sexual harassment, the highest employer manager in charge of enforcing the policy shall develop a written plan to prevent retaliation against the complaining party and witnesses and take reasonable steps to implement the plan. In developing such plan, the manager shall, to the extent practicable, consult with a high level manger, who shall countersign the plan.
Notice of the plan will be communicated to the person making the complaint, the alleged harasser, and anyone with a need to know. The notice will include the contents of the plan, the policy against retaliation, examples of prohibited retaliation and the serious consequences that would result from retaliation. The plan will note that no judgment has been yet made about the allegation, but that a thorough investigation will follow.”
VI. The Model Materials Should Offer Multiple Reporting Mechanisms
The model materials do not state that the employer will designate more than a single individual to receive reports of sexual harassment. Notably, if an employer only designates one manager or supervisor to receive reports of harassment, complainants will have nowhere to turn if they are harassed by that individual.
As the EEOC Select Task Force recognized, “Employers should offer reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment.”
Accordingly, we recommend modifying the model materials to state that where practicable, employers should designate multiple individuals to receive reports of sexual harassment. Additionally, we recommend stating that if a complaint is made against an officer or high level manager of the employer such as the CEO, COO, or CFO or equivalent authority, the employer will retain an independent neutral investigator to conduct the investigation to make written findings and recommendations to the employer, rather than following the usual investigation protocol.
VII. The Model Materials Should Provide Additional Clarity About Confidentiality
The model policy does not provide sufficient clarity regarding the extent of confidentiality that a complainant and a subject of a complaint may expect. As currently written, the policy merely states, “The investigation will be confidential to the extent possible.” While complainants should be informed that some disclosure of the complaint may be required to conduct a complete investigation, we urge the drafters to elaborate on specific circumstances that would require an employer to break confidentiality against the express wishes of an individual reporting sexual harassment.
Further, we note that maintaining the integrity of an investigation demands a balance between non-disclosure by the parties and witnesses and the statutory right of employees to engage in concerted activity, and suggest providing specific guidance on these issues under the model policy. Finally, we propose that complainants be informed that they retain the right during an
investigation to make such disclosures as necessary for emotional support and to make full disclosure to their own legal counsel.
VIII. The Model Materials Should Discuss the Provision of Interim Safety Measures Pending the Completion of an Investigation
The model policy briefly mentions that an employer will take “interim actions” upon receipt of a complaint.13 The model materials should provide additional detail on the availability of interim measures to protect a complainant’s health, safety, emotional well-being, and ability to work during the pendency of an investigation. For example, a complainant who reports sexual harassment, including sexual assault, may only feel safe continuing to come to work if the employer ensures the alleged harasser and complainant do not need to share an office or come into regular physical proximity.
Therefore, to the extent practicable, employers should grant reasonable requests to change offices or work outside of the office, transfer assignments or teams, modify work schedules, or other interim measures that would allow the complainant to continue working to the best of his or her ability during the pendency of an investigation.
IX. The Complaint Form Should be Modified to Aid in the Identification of Repeat Sexual Harassers
The complaint form should be amended to provide space for individuals reporting harassment to list the names of other individuals whom they believe have been subject to harassment by the same perpetrator. As currently written, the complaint form only requests the “name and contact information of any witnesses or individuals that may have information related to your complaint.”14
The form does not request information about other incidents of harassment that the complainant has knowledge of, suspects, or has observed. It is essential that employers explicitly solicit this information to discover and appropriately discipline repeat sexual harassers.
X. The Model Materials Should Not Use the Term “Zero Tolerance”
Both the model policy and the model training state that the employer has a “zero tolerance” policy toward harassment. Yet the EEOC Select Task Force found:
Although not intended as such, the use of the term "zero tolerance" may inappropriately convey a one-size-fits-all approach, in which every instance of harassment brings the same level of discipline. This, in turn, may contribute to employee under-reporting of harassment, particularly where they do not want a colleague or co-worker to lose their job over relatively minor harassing behavior – they simply want the harassment to stop. Thus, while it is important for employers to communicate that absolutely no harassment will be permitted in the workplace, we do not endorse the term “zero tolerance” to convey that message.
We recommend omitting any reference to “zero tolerance” and retaining a more nuanced description of the potential consequences of a report of harassment. For example, the model policy could adopt the following language from the model training, which appropriately emphasizes proportionality: “Disciplinary action will be taken, if appropriate. If the behavior is sufficiently serious, disciplinary action may include termination. Repeated behavior, especially after an employee has been told to stop, is particularly serious and will be dealt with accordingly.”
XI. Specific Edits to the Model Policy
Below is a list of specific edits that concern word choice or other specific proposed revisions.
“Introduction.” We suggest including language that informs workers that the prohibition on sexual harassment is not only a matter of legal compliance, but that it is inconsistent with the employer’s values. A clear statement that the employer’s goal is to foster a culture of diversity, inclusivity, and mutual respect is one of the most significant steps an employer can take to prevent harassment.18 We also encourage inclusion of a statement that the policy’s terms go hand in hand with accountability, and that individuals who violate the policy will be held responsible in an appropriate manner.
“Policy.” The “retaliation prohibition” section should make clear that protection does not attach only when an individual “reports an incident of sexual harassment, provides information, or otherwise assists in any investigation of a sexual harassment complaint.” Rather, protection from retaliation also protects any individual who opposes unlawful harassment more generally. This paragraph also should reflect that it is
not merely “compensation” that may be sought in other available forums, but a “remedy.”
Regarding the employer investigation detailed in section 5,21 we propose eliminating a reference to “due process,” a concept lifted from criminal law that carries connotations that may be confusing in the employment context. We suggest replacing this language with a statement that the process will be fair.22
We oppose requiring employees to cooperate in an investigation. While managers’ and supervisors’ participation should be mandatory, employees merely should be encouraged to do so. The obligation of managers and supervisors to report harassment, as described in section 7,24 should apply to any harassment of which they become aware, not only harassment they personally observe.
Finally, we urge the drafters to require wider dissemination of the policy beyond posting it “prominently in all work locations” and providing it “to employees upon hiring.”26 We propose that it be re-distributed annually, and also that it be made available online – strategies that not only reinforce the company’s commitment but absolve employees from having either to request a copy from the employer or to look at the policy in public view of co-workers and managers.
“Examples of sexual harassment.” The first example provided, “[p]hysical assaults of a sexual nature” is suggestive of criminality and is likely to confuse employees by setting the bar for prohibited conduct too high. We suggest using “[p]hysical conduct” instead. We believe that “[s]exually oriented gestures, noises, remarks, jokes or comments” sufficiently describes the prohibited conduct, and that the comments need not be “about a person’s sexuality or sexual experience” to rise to the level of illegality.
“Reporting Sexual Harassment.” In order to make the complaint procedure as accessible as possible, we suggest that the phone number and e-mail address of the “person or office designated” be included.
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We appreciate the opportunity to provide comments and suggestions on the model sexual harassment materials. We commend New York State for taking this vital step to reduce and prevent sexual harassment throughout the workforce. Please feel free to contact Katharine Bodde at 212-607-3375, firstname.lastname@example.org or Lenora Lapidus at 212-549-2668, email@example.com if we may provide additional information about any of the recommendations we outline above.
Katharine Bodde, Senior Policy Counsel
New York Civil Liberties Union
Lisa Zucker, Counsel
New York Civil Liberties Union
Lenora M. Lapidus, Director
American Civil Liberties Union Women’s Rights Project