NELA/NY

ADVOCATES FOR EMPLOYEE RIGHTS

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION

September 11, 2018

For Immediate Release Contact: Miriam F. Clark, Esq.
President of NELA/NY
mclark@rcbalaw.com
212-321-7075

Statement of NELA/NY Concerning Governor’s Proposed Model Sexual Harassment Policy

and Proposed Minimum Standards for Sexual Harassment Policy

NELA/NY previously identified problems with the sexual harassment legislation passed by the New

York legislature in April 2018. Those deficiencies include retaining the outdated “severe or pervasive”

standard for proving cases of sexual harassment, which requires judges to dismiss claims even if victims

have suffered substantial sexual harassment at work because the harassment is not “severe” or “pervasive”

enough, limiting employer liability under the Farranger-Ellerth doctrine or similar standards, and treating

sexual harassment differently from other equally invidious forms of unlawful harassment, such as racial

harassment.

The inadequacies in New York State law cannot be remedied by the governor’s recently issued

proposed Minimum Standards for Sexual Harassment Policies (the “Minimum Standards”) and the Model

Sexual Harassment Policy (“Model Policy”). Indeed, no employer-issued sexual harassment policy, however

well intentioned, can substitute for public hearings and additional legislation that are needed to protect victims

of sexual harassment. Effective legislation would eliminate the “severe or pervasive” liability standard and

eliminate the availability of the Faragher/Ellerth affirmative defense. Both the Minimum Standards and the

Model Policy do not address these limitations.

817050 v1
 Moreover, both the Minimum Standards and Model Policy contain multiple instances of vague or

misleading language that may confuse workers about their legal rights. Although the brief comment period

provided by the governor’s office precludes NELA/NY from engaging in a comprehensive review of the

Model Policy and Minimum Standards, we have identified the following deficiencies in those documents that

should be addressed before they are adopted in final form:

• The Model Policy recommends that employers adopt “a zero-tolerance policy for any form of sexual

harassment.”(Model Policy at 1) Similarly, the Model Policy recommends that employers maintain

“a zero-tolerance policy for [] retaliation against anyone who, in good faith complains or provides

information about suspected sexual harassment,” (Model Policy at 1) and further states that any

complaint of sexual harassment to any supervisor or manager is “protected activity” under the New

York Human Rights Law. (Model Policy at 4) But this is not correct. Under New York law, a

complaint about sexual harassment is only protected from retaliation if the employee has a good faith

and “reasonable” belief that the conduct of which he or she is complaining is against the law.

Therefore, sexual harassment complaints about conduct which cannot reasonably be considered

severe or pervasive are not protected from retaliation. We commend employers who set a higher

standard for their employees than required by present law with respect to sexual harassment,

harassment based on race and all other protected categories, as well as retaliation. The Model Policy

as presently drafted, however, will likely mislead many employees to justifiably believe that their

legal protections are greater than actually exist under the law.

• The Model Policy appropriately states that that “[r]eports of sexual harassment may be made verbally

or in writing.” (Model Policy at 4) However, it further provides that “all employees are encouraged

to use [a] complaint form” to transmit a sexual harassment complaint and that “employees who are

reporting sexual harassment on behalf of other employees should use the complaint form and note

that it is on another employee’s behalf.” (Id.) There is no legal reason for employers to encourage

written reporting of sexual harassment over oral complaints. Indeed, most employees have neither

the education nor the sophistication to write a complaint about sexual harassment. Moreover, written

817050 v1
 complaints from employees may be used to their detriment in later legal proceedings. Accordingly,

employees should be encouraged to convey a sexual harassment complaint by whatever means she

or he is most comfortable. The efficacy of any investigation will depend on the level of training of

those charged with investigating it, and responsibility for a thorough investigation should not devolve

to the employee.

• Other misstatements of the current law as reflected in the Model Policy include: (i) its failure to state

that an employer is liable for sexual harassment that it knew or “should have known” about (e.g.,

Model Policy at 2); and (ii) the employer’s obligation to take prompt, remedial and effective

corrective action (Id.). Thus, the Model Policy puts an additional onus on employees in terms of filing

an internal complaint that it strongly suggests should be in writing, while failing to accurately state

the employer’s obligations under current law.

• The Minimum Standards provide that every employer’s sexual harassment policy must “include a

procedure for the timely and confidential investigation of complaints that ensures due process for all

parties.” (Minimum Standards at 1) The Model Policy similarly states that “[a]ll persons involved [in

a sexual harassment investigation], including complainants, witnesses and alleged perpetrators will

be accorded due process to protect their rights to a fair and impartial investigation.” (Model Policy at

5) We recognize that the April 2018 amendments to the Labor Law requires that every employer

sexual harassment policy “include a procedure for the timely and confidential investigation of

complaints and ensure due process for all parties.” N.Y. Lab. Law § 201-g. However, neither the

Minimum Standards nor the Model Policy explains what the “due process” requirement means in

practice or how it is to be implemented. This ambiguity raises numerous questions for employees

involved in sexual harassment investigations, including whether an accused harasser has the right to

confront a fellow employee who has made a sexual harassment complaint, or to obtain documentary

evidence in his or her defense, or to interview potential witnesses. NELA/NY is concerned that that

failure of the legislature to address these issues in the April 2018 legislation or the governor to address

these matters in the Minimum Standards or Model Policy will encourage employers to provide

817050 v1
 unwarranted protections to those accused of sexual harassment, and accordingly deter victims from

coming forward with meritorious complaints.

• The Model Policy contains information about applicable anti-discrimination laws and outside

agencies that will be at best confusing for employees who do not have an attorney, and this harm is

compounded because the Model Policy does not make employees aware that they have the right to

obtain legal counsel if they feel they are being sexually harassed.

• For example, the Model Policy states that employees can make a complaint to the New York State

Division of Human Rights (“DHR”) at no cost and without lawyer, and that the DHR will investigate

the complaint for probable cause and potentially conduct a public hearing with an administrative law

judge. However, the Model Policy does not inform employees about the election of remedies doctrine,

pursuant to which employees may forfeit their rights to pursue sexual harassment claims in court if

they choose to file a DHR complaint. Additionally, the Model Policy does not explain that: (i) DHR

finds Probable Cause only in a small percentage of cases (14.1% of cases in FY’2016-17); (ii) that

DHR, while completing an intake interview does not represent the employee during the investigation,

but takes the position of a neutral; (iii) that the employer will most likely be represented by counsel

in the DHR; and (iv), that pursuing their claims without an attorney, even in the DHR, can present

substantial challenges, even for well-educated and sophisticated complainants. In short, the

description of DHR functions is sorely misleading to the detriment of employees.

• The Model Policy’s description of the EEOC is likewise deficient in the same ways as the description

of the DHR. Additionally, the Model Policy does not state that the EEOC does not have jurisdiction

to investigate sexual harassment complaints at employers with fewer than 15 employees, and the

Model Policy contains no information about the EEOC’s mediation program.

• The Model Policy nowhere explains the work sharing arrangement between the EEOC and the DHR

and where to obtain more information about it.

• The scant attention paid to the NYC Human Rights Commission or the New York City Human Rights

Law, which does not require proof of severe or pervasive harassment or recognize the

817050 v1
 Faragher/Ellerth affirmative defense, may mislead New York City employees about the most

effective forum to pursue their claims.

In sum, NELA/NY believes that the Model Policy and the Minimum Standards, like the April 2018

sexual harassment legislation, is a well-intentioned but poorly conceived effort to provide New York

employees with greater protection against sexual harassment. NELA/NY reiterates its call for the State Senate

and Assembly to convene legislative hearings about these issues, and to afford all relevant stakeholders the

opportunity to craft new legislation that will more effectively fight the scourge of sexual harassment and other

forms of unlawful discrimination.

About NELA/NY:

NELA/NY, the local affiliate of the National Employment Lawyers Association, advances and encourages

the professional development of its members through networking, educational programs, publications and

technical support. NELA/NY also promotes the workplace rights of individual employees through

legislation, a legal referral service, and other activities, with an emphasis on the special challenges

presented by New York's employment laws.

NELA was founded in 1985 to provide assistance and support to lawyers in protecting the rights of

employees against the greater resources of their employers and the defense bar. NELA is the country's only

professional organization that is comprised exclusively of lawyers who represent individual employees in

cases involving employment discrimination, wrongful termination, employee benefits, and other

employment-related matters. NELA has a membership of more than 2,000 lawyers in 50 states and the

District of Columbia, as well as 50 state and local affiliates around the country. NELA/NY has more than

300 members.

817050 v1