The upcoming sexual harassment prevention laws in New York State will make it a requirement for companies to conduct training in sexual harassment with all employees once a year.
This is a significant addition to any HR practitioner’s plate, and with all the considerations that go into choosing and rolling out a training solution, it’s easy to forget that the law also requires updates to every organization’s sexual harassment policies.
We’re here to help. To simplify that process, we’ve worked with our outside legal counsel, Dan Obuhanych of Silicon Valley Workplace Law, to put together a guide to ensure your policy complies with the new laws, and to help you manage and investigate harassment complaints that may arise.
Developing a Policy
If you don’t have one already, your organization must develop and share a sexual harassment policy that contains minimum standards as outlined by the state. Alternately, you can adopt the model policy from the New York State Division of Human Rights. Here’s what a compliant sexual harassment policy will do:
- Clearly prohibit sexual harassment
- Provide examples of what is sexual harassment
- State that harassment is illegal under federal, state, and sometimes local laws, and discuss the remedies available to victims of sexual harassment
- Include a complaint form – this is the designated form employees will use for reporting harassment
- Include a procedure for the timely and confidential investigation of complaints – this ensures due process for all parties
- Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints
- Clearly state that sexual harassment is considered a form of employee misconduct; it should say that sanctions will be enforced against individuals who engage in sexual harassment and against managers who knowingly let harassment continue
- Clearly state that it’s unlawful to retaliate against employees who complain of sexual harassment or who testify or assist in any investigation or proceeding
Developing a Complaint Form
Under New York State law, you must provide employees with a standard form for filing a sexual harassment complaint. Keep in mind that this is the vehicle for employees to report harassment, so it’s crucial that it include all the necessary information and that it’s clear to anyone who needs it.
Your company’s complaint form should do each of the following things:
- Review the employee’s rights: You should clearly ask the employee to submit the form as soon as possible if they have been the victim of harassment or witnessed it against another employee. You should also state that the employee is protected from any potential retaliation.
- Request employee information: Ask the employee to submit their name, title, work contact information (including email, phone number, and office location, if applicable).
- Request supervisor information: Regardless of who’s being accused of harassment, ask the employee to name their direct manager, including the manager’s title and contact information.
- Request details on the complaint: Ask the employee to name the person who harassed them, including that person’s contact information, if applicable. Ask them for their relationship to this person (e.g., is the alleged harasser a supervisor, subordinate, or direct colleague?). Also ask for the dates of harassment, and make the complainant specify whether the harassment is still ongoing.
- Ask for witnesses: If there are witnesses to the alleged harassment, ask the employee for the names and contact information of anyone who may have witnessed the alleged harassment.
- Ask for other legal details: You may also ask the employee if they have filed a complaint with a local, state, or federal agency, whether they have begun a lawsuit, and whether they have retained an attorney about the harassment.
A sample complaint form is available here.
Filing an Investigation Report
A sexual harassment investigation report doesn’t need to be complicated as long as it addresses the central questions of the investigation. Here’s what it should include:
- A summary: Your summary of the investigation should list pertinent facts (e.g., the dates when it took place, the person being accused of harassment, and the number of people interviewed).
- Individuals Interviewed: This should include the individuals’ titles and the date when you spoke with each of them.
- Key findings: This should state the overall factual (but not legal) conclusion of your investigation (e.g., “Gary F., on several occasions, made inappropriate advances on female employees against their consent). That said, you should avoid concluding whether such conduct constituted “sexual harassment.” That is a legal conclusion, not a factual one. Finally, as much as possible, the report should include quotes from individuals interviewed in the investigation, as well as specific details on examples provided and, when possible, the date of each incident.
And remember, don’t feel you need to approach an investigation by yourself, especially if harassment investigations fall outside your expertise. The process should be conducted by someone with experience or training in conducting workplace investigations, such as a senior HR leader or general counsel.
The Importance of Being Prepared
When sexual harassment occurs, it’s a difficult matter for all involved. The new guidance from New York State seeks to standardize how employers approach harassment and ensure that all parties are treated fairly and consistently.
For more information about the upcoming State and City laws, we invite you to view a recording of our recent webinar here.