Sexual harassment is a widespread problem across New York State; no industry is exempt. Stronger policies to protect victims of sexual harassment and to prevent harassers from carrying on unchecked campaigns of harassment for years are critical for the safety of New Yorks workforce. Unfortunately, the documents released in late August wont do the job. Each document is deeply flawed and should be completely redrafted, rereleased and subjected to the same public scrutiny that any serious rulemaking process would be.
The 20 day comment period is too short to allow for public input. The State Administrative Procedure Act requires at least a 60 day comment period for rulemaking. While these model documents arent held to the same standard, the subject matter is important enough that it ought to be approached with the same careful deliberation that the longer comment period allows. The comment period must be extended to a minimum of 60 days.
To ensure true public participation in this process, public hearings must be held. Sexual harassment affects workers in every industry across the state, including government. Victims deserve to be heard, yet despite their repeated requests for that opportunity, there have been no public hearings. These policies should be drafted with the input of the people who have been affected by sexual harassment.
Inconsistencies and errors
There is a myriad of inconsistencies and errors in the draft model policy and supporting documents which must be corrected before implementation, just some of which I have detailed below.
The draft model policy states that A complaint alleging violation of the Human Rights Law may be filed either with DHR or in New York State Supreme Court., omitting the fact that the Court of Claims may be the venue where a lawsuit must be filed. However, Labor Law §201-g(1)(a)(v) very clearly states that the model policy must inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially.
The draft model policy includes information about the federal Equal Employment Opportunity Commission without mentioning that the EEOC is only a possible venue for workplaces with 15 employees or more.
The draft model policy and supporting documents use the phrases confidentiality and confidential to the extent possible interchangeably. However, for a victim of sexual harassment, the difference between these two concepts is critical. True confidentiality isnt possible when sexual harassment is reported; the person accused of harassment, managers, and HR representatives, among others, may be notified of the report. Victims shouldnt be falsely promised confidentiality when that is a promise that cannot be kept.
Retaliation is defined inconsistently in the model policy. On page 1, retaliation is an adverse employment action, however, on page 4, it can be any action that would keep a worker from coming forward to make or support a sexual harassment claim. Both victims and witnesses need a clear understanding of what actions qualify as prohibited retaliation.
The model policy states on page 5 that in the case of an oral report of sexual harassment, the person who has received the complaint will fill out the written complaint form if the reporting individual does not. However, the model complaint form does not indicate that it can be filled out by the recipient of the complaint. The model policy also states that anyone who witnesses or is aware of sexual harassment can make a complaint; the complaint form doesnt indicate this, either.
The timeframe for the completion of an investigation is unclear. The model policy states unequivocally that an investigation should be completed within 30 days while the training document says an investigation should be completed within a reasonable timeframe, for example, within 30 days. Without a firm guideline, many companies will drag an investigation out in perpetuity, providing no relief to victims and, in many cases, allowing perpetrators to continue harassing.
Beyond the drafting errors and inconsistencies, these documents include some very real conceptual failures, detailed below.
The model complaint form requests the victims home address and home telephone number. This information is not relevant to the complaint and should not be required in order to report harassment. Many victims will be reticent to report if they are required to disclose unnecessary personal information in order to do so. Further, while employers are required to keep a written record of the complaint and subsequent investigation, per the model policy, there is no provision to redact information to protect victim or witness safety.
The model complaint also asks the victim whether theyve filed complaints with any federal, state or local agencies, whether theyve filed suit and whether theyve hired an attorney. None of these factors are relevant to a companys internal investigation into harassment. These questions will intimidate many victims out of reporting their harassment, implying to them that their employer has a right to this information and even that there may be a prohibition against pursuing redress in multiple venues.
The documents on the whole fail to take into account any harassment besides explicit sexual harassment. The draft model complaint form provides no indication that any other kind of workplace harassment can be reported. The draft model policy completely ignores any other kind of workplace harassment. Even the model training document, in its six examples of harassment, only includes explicit sexual harassment. There are no examples of harassment based solely on any other protected characteristics, nor are there any examples of sexual harassment compounded by harassment based on another protected characteristic. Even worse, there is no mention of gender-based harassment that is not explicitly sexual in nature, despite studies demonstrating that this is the most common kind of workplace harassment.
In conclusion, these draft policies are sorely lacking in both process and substance. In order to truly eradicate all forms of harassment from New Yorks workplace, its essential to start over with a truly public process.