Sexual Harassment Working Group

HarassmentFreeAlbany.com
sexualharassmentworkinggroup@gmail.com

Public Comment for New York State

Department of Labor: Draft Model Sexual Harassment Policy, Minimum Standards, and
Complaint Form

September 11, 2018

Introduction
Prior to the passage of the new sexual harassment protection laws this past April, the Sexual
Harassment Working Group (SHWG) publicly expressed grave concerns not only about the
substance of the bills, but about the process in which they were drafted. Unfortunately, the bills
were passed without adequate input from victims and experts, and they failed to address some
of the largest gaps in existing gender-discrimination and sexual harassment law.

Among other provisions, the new laws require all employers across New York State to comply
with requirements in the new Labor Law Section 201-g relating to sexual harassment: adopt the
statewide model sexual harassment policy or one which “meets or exceeds” such model policy.
Per the enacting statute, the model policy must include a complaint form and other specific
information. Additionally, the new law requires employers to use the model sexual harassment
training program promulgated by the Department of Labor (DOL), or one which “meets or
exceeds” such model training policy. This new requirement, if implemented as a prevention tool
and not a “box-checking” compliance exercise, has the ability to reduce workplace harassment.
However, the Equal Employment Opportunity Commission (EEOC) has noted that “ineffective
training can be unhelpful or even counterproductive,”1 again highlighting the need for such
standards to be created in consultation with victims and experts.

We are disappointed that the draft model documents were released without sufficient notice, at
a time when many New Yorkers are spending the final days of summer with family, and would
not have adequate time to review the documents. More so, we are concerned that yet again, it
appears victims, advocates, and experts were not meaningfully consulted nor involved in the
creation of the model papers. The SHWG has significant concerns, both in process and content,
that we believe must be addressed to truly protect workers. Additionally, a 2016 EEOC Select
Task Force on the Study of Harassment in the Workplace produced a report after a year-long
review with “outside experts including attorneys, representatives of employee and employer
advocacy groups, labor representatives, and academics who have studied this field for years –
sociologists, psychologists, and experts in organizational behavior.” Provisions of the New York
State model policy conflict with this extensive report.

1
​Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria
A. Lipnic, United States Equal Employment Opportunity Commission (June 2016) at page v
available at ​https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm

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 Sexual Harassment Working Group
HarassmentFreeAlbany.com
sexualharassmentworkinggroup@gmail.com

It is challenging to comprehensively comment on draft guidance that is based on flawed

statutes. Nonetheless, the SHWG worked to craft a meaningful public comment, and we hope
that the Department of Labor will read and thoughtfully consider it, along with other public
comments, as well as recognize the need for public hearings to allow victims and experts across
all industries to openly discuss what else needs to be done to protect workers.

Concerns with the Process

The draft model documents -- minimum standards, sexual harassment policy, complaint form,
and training materials -- were released on Thursday, August 23rd, with a public comment
submission deadline of September 12th. This 14 business-day window is wholly insufficient for
most people, including experts and advocates, to provide well-researched and thoughtful
comments. Moreover, because the documents are only posted in English online, thousands of
New Yorkers whose primary language is not English do not have the opportunity to access or
comment on the draft model documents.

It is imperative that employee protections are thoroughly vetted and include a range of
perspectives. However, we are unaware of the extent and nature of expert, advocate, and victim
input that may have gone into drafting the model documents, as well as whether the DOL
consulted the New York State Division of Human Rights (DHR), as Section 201-g requires.
Moreover, requiring employers to adopt a sexual harassment policy by October 9th may result in
haphazard adoption that could jeopardize employee rights, especially when employers are not
provided adequate resources or support from New York State. We strongly recommend that the
DOL work with DHR, the Legislature, and the Governor to hold public hearings, where key
stakeholders will have the opportunity to weigh in on the enacted laws and proposed guidance.
Further, we urge the DOL to delay the October 9 enactment deadline, and extend the comment
period through October 22. This will provide the same 60 -day comment period provided to the
public when new rules are introduced. Additionally we strongly recommend that New York State
commit to providing resources to small businesses to adequately provide training to their
employees.

Overview of Concerns with the Content

These documents need to be easily accessible to workers across all industries. Yet almost
immediately, they read as unnecessarily complicated and legalistic. Moreover, this model policy
is narrowly focused on unwanted sexual attention and sexual coercion: it fails to take into
account other forms of gender-based harassment, which some studies have concluded is the

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 Sexual Harassment Working Group
HarassmentFreeAlbany.com
sexualharassmentworkinggroup@gmail.com

most common type of harassment,2 as well as other types of harassment and abuse that
employees may face in the workplace (e.g., racial discrimination).

While the policies should focus on eliminating all forms of harassment, it should clarify what
conduct is legally actionable. Notably, in certain sections, the model policy also goes beyond
the language of the enacting statute and the current state of the law, thereby misleading
employees of their rights and failing to inform employers of what is expected of them. Where the
policy exceeds the law, it should be explicitly noted on the documents. A worker’s rights of
redress may differ significantly if an employer decides not to comply with its internal policy,
versus if an employer decides not to comply with law.

The model policy fails to take into account nuances that are specific to government employees,
and in that failure, has the effect of curtailing those workers’ rights. The SHWG strongly
recommends that the DOL re-examine the specific risks present for workers in state entities
such as agencies, the Senate and Assembly chambers, the executive branch and the judicial
branch. Specific policy recommendations from the SHWG can be found at
HarassmentFreeAlbany.com

Specific Concerns with the Content

1. Language Access:​ Perhaps the most glaring shortcoming of the draft docs is that employers
are not required to provide the adopted policy, complaint form, or training to employees in their
primary language -- and that New York state is not providing resources to assist with this goal.
The final line of the draft minimum standards states: “Employers must provide each employee
with a copy of its policy in writing. Employers should provide employees with the policy in the
language that is spoken by their employees”; the draft minimum standards for sexual
harassment prevention training, and the draft model training also contain this permissive
phrasing for language. This renders all of the model documents useless and inaccessible to
thousands of New York workers.

We strongly recommend that the Department of Labor add a requirement that the documents
and trainings be provided in a worker’s primary language, mirroring employer language duties
for the Notice of Pay Rate under the Wage Theft Prevention Act (2011).

​ he draft model documents not only lack

2. Insufficient Protections for Victims and Witnesses: T
protections for victims and witnesses, they also place specific burdens on victims. For example,

2
​Id. at page 10 and footnote 22.

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 Sexual Harassment Working Group
HarassmentFreeAlbany.com
sexualharassmentworkinggroup@gmail.com

the model complaint form includes a space for the complainant to include their home address,
which may be intimidating to victims as well as a risk to their safety. Moreover, the model policy
requires employers to keep a written record of the incident, but does not provide any safeguards
for the information included in this form (e.g. redaction for privacy), compounding the safety risk
to the complainant as well as a potential barrier to witness participation.

We strongly recommend that the form not include a section for complainant’s home address,
and that the model policy be revised to require provisions for redacting complainant and witness
names and identifying information.

3. Unnecessary Burdens for Victims:​ At times, employee ​rights​ are misstated as employee
duties​. For example, the model policy says “Preventing harassment is everyone’s responsibility”
which is a gross misstatement of the ​employee’s right​ to harassment-free workplace, and the
employer’s duty​ to maintain such a workplace. It is never a victim’s responsibility to prevent
their own harassment, and a supervisor cannot disown their own duty by suggesting co-workers
or witnesses bear an equal duty. Additionally, the model complaint form asks the complainant
to state whether they’ve filed claims, instituted a legal suit, or hired an attorney. This information
is irrelevant to the employer conducting a thorough, neutral investigation.

We strongly recommend that these inappropriate lines be omitted from the draft documents.
The EEOC has found the least common response to harassment is to report the harassment
internally or to file a formal complaint3, with some studies showing that only 6% to 13% of
individuals who experience harassment filing a formal complaint.4 It is imperative to eliminate all
burdens likely to intimidate a victim from reporting.

4. Inconsistencies within the Model Documents:​ First, the model policy is internally inconsistent
in its references to confidentiality; at times the model policy states that a complaint will be
“confidential” and in other sections that it will be “confidential to the extent possible.” Because it
will be difficult for any employer to guarantee absolute confidentiality during investigations,
references should be made consistent so that complainants are aware that their complaint will
be made “confidential to the extent possible.”

Second, the model policy is internally inconsistent in its usage of “retaliation”; in the first
reference the policy references an “adverse employment action” and in the next reference the
document notes that retaliation “can be any action that would keep a worker from coming

3
Id. at page 16 and footnote 60.
4
Id. at page 16 and footnote 63.

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 Sexual Harassment Working Group
HarassmentFreeAlbany.com
sexualharassmentworkinggroup@gmail.com

forward to make or support a sexual harassment claim.” These are two significantly different
legal standards, and references should be made consistent with the latter definition.

Third, when read together, the model policy and model complaint form are unclear with
respect to the relationship between the complaint form and a verbal report. The model policy
states that the employer will fill out a form in the event of a verbal report; this is not noted on the
complaint form. As a related point, the model complaint form only allows for the signature of the
complainant, and premises an investigation upon this signature -- in other words, in the event of
a verbal report and an employer-filled form, a view of the complaint form alone would suggest
that no investigation would occur.

Fourth, the model policy and model training document conflict on the time frame for an
investigation. The model policy states that the investigation “should be completed within 30
days,” and the model training document says the investigation should be completed “within
reasonable timeframe, for example, thirty days.” These are two significantly different standards,
and should be made consistent in a manner which urges promptness, but not at the expense of
a thorough and neutral investigation.

Fifth, the model complaint form conflicts with the minimum standards and model policy
on what triggers an investigation. The model complaint form requires the complainant to directly
request an investigation, in conjunction with signing the form; the minimum standards and
model policy state that an investigation will be conducted and do not note any necessity for a
complainant/victim to request an investigation. It is a significant burden for a victim if the
employer requires a specific request for an investigation, and the victim deserves to have clarity
in the process.

We strongly recommend that the drafters of these documents consult with external legal
experts to correct these inconsistencies while accurately portraying the current state of the law
in New York.

5. Lacking Information on Rights of Redress: T ​ he draft model policy fails to properly notify
employees of their rights of redress and all available forums for adjudicating sexual harassment
complaints -- thus failing to meet the requirement of the newly-added Labor Law Section
201-g(1)(a)(v).

First, the model policy ​fails to address that the Court of Claims may be a required venue 
for individuals suing the state; and that a suit brought in the Court of Claims requires filing a 
Notice of Claim within 90 or 180 days after the alleged incident. The model policy’s failure to 
reference those requirements could have the effect of a victim being unaware that their claim is 
in jeopardy of becoming time-barred.  
 

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 Sexual Harassment Working Group
HarassmentFreeAlbany.com
sexualharassmentworkinggroup@gmail.com

Second, the model policy misstates the law for EEOC claims and employers with fewer 
than 15 employees. The model policy states that, with respect to the EEOC “If an employee 
believes that he/she has been discriminated against at work, he/she can file a ‘Charge of 
Discrimination,’”” but fails to note the 15-employee threshold present in current federal law. This 
omission could wrongfully cause an employee to misunderstand the legal rights available to 
them. Related, the model policy usage of “he/she” is unnecessarily gendered language which 
fails to include gender-nonconforming individuals or anyone who doesn’t use those pronouns; 
usage of the singular “they” as a gender-neutral pronoun is considered accurate and  
acceptable.5 
 
We strongly recommend the model documents specifically reference the Court of Claims Act 
limitations, as well as the EEOC 15-employee threshold. These model documents cannot be 
enacted where they fail to meet the requirements of their enabling law. 
 
6. Insufficient Examples:​ The model policy provides limited examples of what may be unlawful 
sexual harassment, and thus may be misleading. It is common for employees to experience 
subtle yet harmful forms of harassment, ​such as constant, unwanted, and inappropriate
attention, intentionally ambiguous flirting, or aggressive “friendly” behavior by co-workers.  

We strongly recommend that the required list of examples includes those that are not expressly
sexual in nature. Further, we urge the DOL to explicitly state the list of examples is not
exhaustive.

7. Other Types of Discrimination not Referenced:​ There is increasing evidence that victims of
harassment often experience mistreatment in multiple forms of harassment at one time, such as
sexual harassment and race-based discrimination;6 the model policy, complaint form, and
minimum standards fail to address what an employee can do in this case. For example, on the
complaint form, would an employee only be able to provide details of the sexual harassment,
and be unable to explain concurrent race-based discrimination?

We strongly recommend that the drafters of this document consult with legal experts to
understand how best to articulate the reporting process of multiple forms of harassment and/or
discrimination.

5
​See Merriam-Webster, “Words We’re Watching: Singular ‘They’” available at
https://www.merriam-webster.com/words-at-play/singular-nonbinary-they
6
Jana L. Raver and Lisa H. Nishii, ​Once, Twice, or Three Times as Harmful? Ethnic Harassment, Gender
Harassment, and Generalized Workplace H ​ arassment, 95:2 J. of Applied Psychol. 236 (2010).

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 Sexual Harassment Working Group
HarassmentFreeAlbany.com
sexualharassmentworkinggroup@gmail.com

8. Model Documents Exceed the Relevant Laws: ​In certain areas, the model policy appears to
go beyond the law, which is misleading to victims. ​A victim’s rights of redress may differ
significantly if an employer decides not to comply with its internal policy, versus if an employer
decides not to comply with law. For instance, the model policy states there is a “zero tolerance
policy” for sexual harassment, but this is not reflected in New York State or federal law. In fact,
the law allows sexual harassment that doesn’t rise to a criminal level and does not meet the civil
“severe or pervasive” standard.7 The EEOC also cautions against using the phrase “zero
tolerance” because it is potentially misleading and counterproductive. Accountability requires
that discipline for harassment be proportionment to the offensiveness of the conduct. The EEOC
further warns that using a “one-size fits all approach” 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.”8

Additionally, the model policy states “​[a]ll persons involved...will be accorded due
process to protect their rights to a fair and impartial investigation.” A blanket promise to provide
due process is misleading to employees because it does not reflect the current state of the law
for many workers. Including this language in the model policy which all employers are required
to adopt is a major overhaul of New York employment law, and it is unrealistic to expect that it
can be implemented in the short time frame provided. Also, we are concerned that due process
rights would only extend to those involved in a sexual harassment investigation, and not other
areas related to employment rights.

We strongly recommend that the DOL explicitly note where the policy exceeds in the law
throughout the model document.

Conclusion:
The process used to hand down this guidance is reminiscent of how the April sexual
harassment laws were drafted: rushed and unresponsive to feedback from people affected by
sexual harassment. New Yorkers deserve more than a 14-business day comment period— we
deserve a robust public conversation which allows for better understanding and stronger policy.
Anything less stifles trust in the system, and leaves employees vulnerable and without adequate
recourse.

7
​One of the most meaningful changes that New York State could adopt to improve worker rights is eliminating the
overly-restrictive “severe or pervasive” standard applied to certain forms of sexual harassment. We suggest that the
DOL coordinate with DHS to study the harms occasioned to workers as a result of this burdensome standard, instead
of a more appropriate standard of being treated “less well” because of their sex/gender. See Sexual Harassment
Working Group, “Fixing Albany’s #MeToo Problem: What’s Next? Policy Recommendations to Protect Employees of
Elected and Appointed Officials from Gender-Based Discrimination and Harassment” (June 2018) at page 8,
available at HarassmentFreeAlbany.com
8
Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria
A. Lipnic, United States Equal Employment Opportunity Commission (June 2016) at page 40,
available at ​https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm