New York Keeps Falling Short in Ensuring Respectful Workplaces
In the aftermath of #MeToo, New York was at the forefront of adopting legal protections focused on four objectives:
Advising employees of their rights, obligations and how to raise concerns;
Expanding the scope and remedies under existing laws;
Lifting the cloak of secrecy; and
Ensuring employees can pursue claims in a public judicial forum.
New York State law recognizes 16 protected classes, but these laws were myopically focused on just one. For example, the state human rights law was expanded to cover New York employers of any size, and new written policies were required – but only with respect to sexual harassment. Additional amendments a year later broadened some protections to the remaining protected classes, but not the requirements for a written employer policy and annual harassment prevention training.
The 2021 investigation of Governor Cuomo in response to multiple women’s complaints of sexual harassment and other inappropriate conduct brought a new wave of employment protections in early 2022. These new laws close a legal loophole by extending discrimination protections to the public sector. But we also see that myopy, with a law declaring release of a personnel file to be retaliation, and a new state hotline for reporting complaints – but only of sexual harassment.
Too many of these measures are headline-grabbing solutions, capable of achieving little change. Laws that limit arbitration or confidentiality clauses make harassment more visible, but they are flawed in two key respects. They do not address the underlying issue of the harassing behavior. And the threat of exposure will not significantly deter individuals from engaging in unlawful behaviors.
Legislative bodies and enforcement agencies can and should be more reflective. The New York State Division of Human Rights’ annual reports from each of the past five years list disability, race/color and retaliation as the top three claims asserted, followed by sex. To provide employees with respectful workplaces, these and other protected classes must be addressed, and that is where New York’s mandate of workplace harassment prevention policies is most lacking. The state’s model anti-harassment policy relegates to a footnote any reference to protected classes other than sex.
Similarly, there is no more effective way to create a respectful workplace than by training employees on an organization’s policies and expectations for appropriate workplace behavior, and advising them how they can raise concerns. But here, too, New York’s law falls short – it applies only to sexual harassment, and to mitigate the burden of the state’s mandate for annual training, it accepts the most perfunctory online program as sufficient to achieve legal compliance.
As the EEOC outlined in a seminal 2016 report, training programs are likely to have a demonstrable impact when they start from the top, are conducted by qualified, live, and interactive trainers, and look beyond the law to address respectful behaviors. No state but New York requires annual training, and if delivered effectively, we see little need for it to be that frequent. It is time for the legislature to consider all protected classes, and to refine its requirements to move beyond check-the-box compliance to instead encourage training that is designed to alter workplace behavior.