ALBANY — While the bar for what constitutes workplace sexual harassment has been lowered, the potential costs for employers that don’t do enough to prevent it have been raised.
Businesses are moving to comply with new state regulations and the mandate that they train their employees about these regulations at least once a year. The first deadline for this annual training arrives in less than three months.
“You have some employers that are scrambling now to get the sexual harassment training done by Oct. 9,” said Saratoga Springs attorney Mike Billok, who represents employers in various labor matters for Bond, Schoeneck & King.
“We’ve helped companies develop policies and train on those harassment regulations.”
It might seem like a rule with no teeth — the statute that requires employers to provide the training imposes no penalty on those that do not, Billok noted.
“The real test would be if someone brings a claim for harassment and they didn’t do training,” he said. It would be that much easier to show the company is at fault in such a situation.
Along with the requirement that employees be trained about what constitutes harassment, New York has made the following changes to state Human Rights Law:
- All public and private employers of all sizes are now subject to the regulations, even with as little as one employee.
- Employers are now liable even if a victim did not follow the internal procedure for reporting harassment.
- The window to file a complaint is extended from one to three years.
- Employers cannot require that complaints go to arbitration.
- Courts are required to award attorney’s fees to complainants who’ve proved their case but barred from awarding them to the employer, unless the complaint is determined to have been frivolous.
- Non-disclosure agreements in settlements are now prohibited in most circumstances.
- Employers must give employees copies of their harassment policies and training materials in the employee’s primary language.
- Burden of proof will be substantially reduced — anything other than “petty slights” and “trivial inconveniences” is now considered harassment.
“That’s huge,” Billok said of this last change. “A lot more suits are likely to be filed.”
Previously, he said, the state followed federal guidelines that restricted lawsuits to allegations of “severe and pervasive” misconduct.
“That was something that was, I wouldn’t say a high bar, but at least a medium bar,” Billok said. “Now the question is, if we do [or] say something stupid, can we be sued over it?”
While sexual harassment is gaining the most attention in the new regulations, he said, they also cover bias based on age, race, gender identity, religion, genetic characteristics and military status, among other things.
Among those helping prepare employers and workplaces for the changes is Pinnacle Human Resources.
The Albany-based firm has not only partnered with the Capital Region Chamber to provide online training for employers that haven’t created their own curriculum, but also works directly with individual companies.
“As human resources professionals we’ve always been on the front lines as far as sexual harassment and the workplace,” President Rose Miller said.
Pinnacle is also retained regularly as a neutral third party to do fact-finding investigations into allegations of workplace harassment, she added.
“What’s been discouraging is that we’ve been providing training for a decade and not seen investigations reduced,” she said.
Pinnacle developed and owns the online training program it uses, so it can make changes quickly and whenever necessary. It was reviewed by the state Division of Human Rights and an attorney, Miller said, so “We say we meet and exceed the new legislation.”
It incorporates things the HR industry has determined are effective.
“Our online program was developed with a lot of research in mind about what hasn’t worked in the past with these trainings,” she said.
“Older training portrayed women in weak and helpless scenarios,” Miller said. “It actually perpetuated the thought that women were weaker.”
Effective training incorporates actual case studies and real examples, she said, because “People resonate more and digest more if there’s a story behind it.”
The specific details of the bias are less important than the lessons imparted, Miller said: “The targeting of an individual, whether it’s for age, or sex or race, there’s little difference in the scenario. You might as well talk about them all equally.”
In-person training is still an important tool in the digital age, she said.
“Online isn’t conducive to a lot of industries. We still as a firm deliver a lot of live training.”
Billok and Miller both said that employers need to do more than just check the boxes on a reporting form to protect themselves — and their employees — in New York’s new era of expanded definitions of harassment and decreased burden of proof.
A company’s leadership must set a culture that opposes harassment and then buy into it, Billok said.
When harassment does happen or even is just alleged, it can’t be ignored, Miller said: “It’s so important to begin when any employer has even a sniff of something wrong going on.”