As all who watch or read the news are aware, a spate of high profile sexual harassment claims involving Harvey Weinstein, Matt Lauer, Kevin Spacey and many others over the past year has shined a light on issues related to gender and harassment in the workplace. This attention has led to new policies intended to prevent workplace harassment:
- The New York State Legislature imposed a number of new requirements on employers, including school districts and BOCES, as part of state budget legislation for 2018-19. Effective Oct. 9, protections were added under the Labor Law as well as the Executive Law’s human rights provisions. Gov. Andrew Cuomo said, “We put into place the strongest and most comprehensive anti-sexual harassment protections in the nation, ending once and for all the secrecy and coercive practices that have enabled this unacceptable behavior for far too long.”
- New York City Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act on May 9. Like the new state laws, the city initiative makes provisions related to gender-based discrimination apply to all employers, regardless of the number of employees. It also changed the statute of limitations from one year to three-years for filing claims of gender-based harassment with the New York City Commission on Human Rights.
- At the end of March 2018, Congress added $16 million to the budget of the U.S. Equal Employment Opportunity Commission (EEOC), and the funding was signed by President Donald Trump in March as part of a $1.3 trillion spending bill. It was the first budget increase for the EEOC in eight years, after years of staffing cuts and hiring freezes. “Going forward, I will ensure that we use these additional funds judiciously to enhance the agency’s work – especially as to harassment prevention,” said Victoria Lipnic, the acting chair of the EEOC.
Allegations of sexual harassment can be costly for school districts. In addition to legal fees, settlements and potential judgments, districts may have to deal with employment separation issues with administrators or even board removals (if those individuals are the aggressors), and the ensuing reputation management issues within their communities.
This article focuses on the anti-sexual harassment provisions in the state budget law and the ongoing obligations of school districts to create a workplace free from harassment, as well as the need to protect themselves against liability and bad publicity.
The harassment provisions of the budget bill affect all employers in the state in a number of ways, including a ban on nondisclosure agreements – a tactic that some employers have used to avoid public attention. The law also prohibits mandatory arbitration clauses and expands liability to include sexual harassment claims involving non-employees, such as contractors.
Significantly, the law requires employers to:
- Enact written sexual harassment policies that comply with the state’s guidelines, including provision of a complaint form.
- Conduct annual sexual harassment prevention training for all employees.
For school districts, those two requirements should be considered urgent.
The law requires “every employer” to adopt either (a) the model policy prepared by the New York State Department of Labor (DOL) in collaboration with the New York State Division of Human Rights (DHR) or (b) a policy that “equals or exceeds” the “minimum standards” for such policy as published by the DOL/DHR.
It is important to note that the DOL’s model policy contains language that imposes obligations on employers that are not specifically required by state law, such as including very specific information about the processing of claims at the DHR and the EEOC.
In any event, your district’s policy must unambiguously meet or exceed the requirements set by DOL and DHR. Be sure to consult with your school attorney regarding any language that varies from the state’s model policy.
The deadline for implementing this policy was Oct. 9, 2018. Has your district fulfilled this legal obligation? If so, has the policy been distributed effectively to all employees, including those who do not have easy access to a district computer? Ask your superintendent.
It is standard procedure and best practice to ask employees to sign a form acknowledging receipt of employment policies. Ideally, your administration should be able to tell you that it has written, signed acknowledgements of receipt of the policies from 100 percent of district employees regarding the new sexual harassment policy.
This required policy update provides an opportunity for your board to review and update, if needed, other district policies that relate to discrimination, harassment, and retaliation to ensure they are fully compatible with the new anti-sexual harassment policy. For instance, the prescribed methods of filing a complaint, organizing an investigation and pursing an appeal should all be compatible. If a district policy on sexual harassment is not followed for any reason, including its lack of compatibility with other policies, the district’s possible legal defenses to a claim may be compromised.
Bear in mind that your board may amend your new anti-sexual harassment policy as long as it continues to meet the standards set in the new law.
For administrators, the next important date regarding this legislation is Oct. 9, 2019 – the deadline to provide employees with training. School board members are not required to attend the training but we recommend they do so to improve their understanding regarding the expectations, rights and requirements of staff.
Administrators should be aware that if they only have employees watch a training video or read information online, that action likely will be viewed as inadequate if the district becomes involved in a lawsuit, a state enforcement action or a DHR/EEOC investigation. State guidance makes it explicit that training ought to be interactive. The key element is the ability of a participant to ask a question and receive a reply.
The state’s guidance document indicates that live trainers – whether available in person or via phone or video-conference – are the “best practice” for effective trainings. The guidance provides examples of permissible forms training, including web-based options. A FAQ on training requirements is available at on.ny.gov/2D30VLn. The requirement to make trainings interactive is addressed in Question 9. Ask your superintendent about how your district plans to meet the training requirements.
School districts should make the most of their trainings. Consider using this opportunity to reinforce employee and supervisor rights and obligations related to sexual harassment but also to discrimination, harassment, and retaliation on the basis of other protected classifications under federal and state anti-discrimination statutes.
Compliance with the state’s new sexual harassment policy should help to foster a workplace free from harassment. Also, it will position your district to defend any future sexual harassment complaints.
More information is available on the state’s website at www.ny.gov/combating-sexual-harassment-workplace/ employers. Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Elizabeth D. McPhail of Hodgson Russ LLP.