In New York (NY), all employers must have a sexual harassment prevention policy that meets specific criteria. In this series of posts, we are breaking down the elements of the State’s Model Sexual Harassment Policy to help employers, employees, and others they encounter stay out of court. Notice that last part: others they encounter.
Covered Individuals
Of course, employers must address employees’ harassing behavior promptly. Yet many people are still surprised to learn that, when it comes to sexual harassment, employers also have a duty to address the misconduct of:
- Employment applicants
- Interns (paid or unpaid)
- Independent contractors
- Subcontractors
- Vendors
- Consultants
- Cleaners
- Repairpersons
- Clients
- Other people they do not directly supervise
This can be especially challenging with remote workers or those who visit multiple sites throughout their workdays.
Remote Workers
The NYS Model Sexual Harassment Policy reads, “Unlawful sexual harassment is not limited to the physical workplace itself.” At Third Ear Conflict Resolution, we’ve seen, heard, and read about sexual harassment occurring:
- On business trips
- At holiday parties, usually where alcohol is served
- By telephone
- In electronic formats, including text, email, and social media messaging
- During videoconference calls
- Through unsolicited gifts
Supervisors and Managers
In addition to having a duty not to engage in sexual harassment, supervisors and managers must be on the lookout for any behaviors that might leave an employee feeling:
- Uncomfortable
- Humiliated
- Unable to meet their job requirements
In the context of behaviors that might arise to the level of sexual harassment, the Model Sexual Harassment Policy requires them to report suspected misconduct to a designated investigator, usually in a Human Resources or other Executive office. Supervisors and managers can be disciplined if they fail to report suspected sexual harassment or if they allow it to continue after they know about it. Additionally, engaging in or allowing any retaliation against someone who complains about sexual harassment can subject a supervisor or manager to discipline.
Avoiding Re-Traumatization
Historically, sexual harassment was not reported because targets of the behavior were afraid they would lose their jobs or experience retaliation. This resulted in gross underreporting, which was fertile soil for the growth of similar misconduct. In some workplaces, sex discrimination and even sexual assault became part of the culture.
To avoid repeating these systemic errors, supervisors and managers must not only know what’s in the NYS Model Sexual Harassment Policy. They must also be mindful of the impact sexual harassment and the related investigations can have. Here are some best practices:
- Limit access to complaint information to only those involved in the investigation. This will reduce the likelihood of retaliation by the accused harasser, co-workers, and direct supervisors.
- Ensure the investigation is fair and impartial to all parties. Instances of sexual harassment are also underreported because targets fear their harassers will be harshly disciplined.
- Accommodate reasonable requests. When possible during the investigation, allow complainants to work separate from the persons they have accused. This might mean working remotely or taking time off from work.
- Provide resources and supportive measures. Without appearing to favor one party over the other, provide both the alleged target and the alleged harasser resources to navigate the investigation process.
- Maintain transparency of process with the parties. You must still limit access to only those who need to know about the investigation, but communicating regularly about each step of the process will build trust in it.