On April 12, 2018, Governor Andrew Cuomo signed the 2019 budget for the State of New York (the “Budget”) which dramatically changed the landscape of obligations which New York employers are to their employees. Beyond allocating financial resources, the Budget includes a new change to New York law requiring New York employers to conduct annual sexual harassment training for all employees in accordance with state standards. Viewed as a response to the #MeToo movement, the Budget tasks the New York State Department of Labor and New York State Division of Human Rights with creating an interactive model sexual harassment training program for employers in the state, which shall contain the following elements:
- An explanation of sexual harassment;
- Examples of conduct that would constitute unlawful sexual harassment;
- Information regarding the federal and state statutory provisions concerning sexual harassment and remedies available to victims; and
- Information concerning employees’ right of redress and all available forums for adjudicating complaints.[1]
Beginning on October 9, 2018, New York employers must either present the state-approved model or their own model that is compliant with state standards on an annual basis to their entire workforce.
While the Budget’s impact is dramatic, New York is not the only state that requires employers to conduct annual sexual harassment training.[2] California, Connecticut and Maine also require annual sexual harassment training for various sectors of the workforce. Private California employers with 50 or more employees (including part-time employees, temporary workers, and individuals who work outside of California) must provide at least two hours of sexual harassment training every two years to each supervisory employee, and to all new supervisory employees within six months of their assumption of a supervisory position.[3] Connecticut has an identical requirement for private employers, although the 50-employee threshold can be met only by employees who work in Connecticut.[4] In Maine, employers with 15 or more employees in a particular workplace must conduct a sexual harassment training program for all new employees within one year of their commencement of employment.[5] Like New York, each of these states mandate that certain program content be included in any required sexual harassment training session, such as various legal definitions of sexual harassment and where employees can report such behavior.
While California, Connecticut and Maine (and soon, New York) make sexual harassment training compulsory, other states, such as Colorado, Florida, Massachusetts, Michigan, Oklahoma, Rhode Island, Tennessee, Utah and Vermont have statutes “encouraging” employers to provide such training. Federal authorities also promote the implementation of sexual harassment training. For instance, the United States Equal Employment Opportunity Commission specifies via guidelines that: “[Employers] should provide [harassment prevention] training to all employees to ensure that they understand their rights and responsibilities.”[6] Finally, federal courts, including the United States Supreme Court, have routinely held that employers who do not provide such training may lose the ability to evade punitive damages in a sexual harassment lawsuit brought under Title VII of the Civil Rights Act of 1964.[7]
As the #MeToo movement makes clear, workplace sexual harassment is a serious issue for both employers and employees alike, and a problem to be diligently eradicated in the future. We expect New York to be the first of several states or municipalities to join California, Connecticut and Maine in requiring periodic sexual harassment training. Additionally, sexual harassment training is a valuable tool that may reduce employer liability in the event of an employee claim. In light of current trends and legislative guidance, all employers should consider implementing sexual harassment training to the extent they have not already -- and not just in locations where this type of education is required.
[1] https://www.nysenate.gov/newsroom/press-releases/catharine-young/2018-19-state-budget-includes-landmark-sexual-harassment-law.
[2] The New York City Council recently on April 11, 2018 passed the Stop Sexual Harassment in NYC Act (the “Act”), a package of bills aimed at addressing and preventing sexual harassment in the workplace and requires employers with 15 or more employees (including interns) to conduct annual anti-sexual harassment training for all employees, including supervisory and managerial employees. The legislation is now awaiting the signature of Mayor Bill DeBlasio. The Act would amend the New York City Human Rights Law (“NYCHRL”) and the New York City Charter.
[3]https://www.dfeh.ca.gov/resources/frequently-asked-questions/employment-faqs/sexual-harassment-faqs/; https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB396.
[4] https://www.ctdol.state.ct.us/uitax/SexualHarass.pdf.
[5] http://www.maine.gov/labor/labor_laws/publications/2017/SexualHarrassmentEducationandTraining.pdf.
[6] U.S. Equal Employment Opportunity Commission, Model EEO Programs Must Have an Effective Anti-Harassment Program (last visited Apr. 23, 2018), available at https://www.eeoc.gov/federal/model_eeo_programs.cfm.
[7] See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998).