By Nila Merola and Cameron A. Smith

Seyfarth Synopsis: Both houses of the New York State Legislature passed the Gender Expression Non-Discrimination Act, which prohibits discrimination on the basis of gender identity or expression and adds offenses motivated by gender identity or expression to the hate crimes statute.

On January 15, 2019, both the New York State Senate and Assembly passed the Gender Expression Non-Discrimination Act (“GENDA” or the “Act”). Governor Cuomo is expected to sign the Act into law. GENDA’s effective date will be thirty days after Governor Cuomo signs the Act into law (except for the provisions amending the Penal Law and Criminal Procedure Law, which will not be effective until November 1, 2019).

GENDA adds Subdivision 35 to Section 292 to the Executive Law, which defines “gender identity or expression” to mean “a person’s actual or perceived identity, appearance, behavior, expression or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” The Act also amends the State Executive Law, Civil Rights Law, and Education Law to prohibit discrimination in employment, housing, education, and public accommodations, among others, based on gender identity or expression. GENDA also amends the State penal law and criminal procedure law to include certain offenses regarding gender identity or expression within the list of offenses subject to treatment as hate crimes.

Since 2008, GENDA has passed the Assembly 10 times, but has consistently failed in the Senate. In 2016, the New York State Division of Human Rights adopted new regulations that ban discrimination and harassment on the basis of gender identity, gender dysphoria, and transgender status, but GENDA now writes those regulations into law. With GENDA’s passage, New York State joins at least nineteen other states, the District of Columbia, and 157 cities and counties in the United States, including New York City, that have already passed gender-inclusive legislation.

This is a good time for all employers to review their existing anti-harassment and anti-discrimination policies to ensure that they comply with both the New York City Human Rights Law and GENDA. Employers should also ensure that they incorporate gender identity, gender expression, and the status of being transgender into their anti-harassment and anti-discrimination trainings, and clarify that discrimination or harassment on those bases is unlawful.

The attorneys at Seyfarth Shaw LLP are available to provide any assistance with ensuring that you have robust anti-harassment and anti-discrimination policies in place. We can also provide interactive anti-harassment training tailored to your company’s specific business and needs.

By Anne R. DanaNila Merola, and Robert S. Whitman

Seyfarth Synopsis: In compliance with legislation passed earlier this year, New York State has released the final model sexual harassment policy and complaint form, the model training materials, and FAQs, which provide further guidance regarding the legislation. Two significant clarifications to the draft guidance issued several weeks ago are (1) the deadline for completion of employee anti-harassment training is October 2019, not January 2019, and (2) new employees must receive training “as soon as possible,” rather than within 30 days of hire.

Earlier this year, New York State enacted comprehensive legislation targeting workplace sexual harassment. Our previous Management Alerts outlining the various requirements under the law are linked here and here. On August 23, 2018, Governor Andrew Cuomo released a draft model policy and draft model internal complaint form, a draft training script, and draft FAQs. All of those draft documents were subject to public comment. On October 1, 2018, the State issued the final documents. This Alert highlights the key differences between the drafts and the final versions and consolidates the new requirements under the State law in one place.

As background, the law requires the Department of Labor and Division of Human Rights to create a model sexual harassment prevention policy and a model sexual harassment prevention training program. Those agencies have now done so: the model policy and the model training program is available here. Employers must either adopt the model policy and training program, or establish a policy and training program that equals or exceeds the minimum standards provided by the models. The sexual harassment policy must also include a complaint form for employees to report internally alleged incidents of sexual harassment (the model is available here). Below are further details about these requirements.

Policy and Complaint Form

Beginning on October 9, 2018, all employers must distribute to all New York State employees a sexual harassment prevention policy and a complaint form that employees can use to report inappropriate conduct.

For employers that opt to create their own policies, the policy must: (1) prohibit sexual harassment consistent with guidance issued by New York State; (2) provide examples of conduct that constitutes sexual harassment; (3) clearly state that sexual harassment is considered a form of employee misconduct and that disciplinary action will be taken against individuals engaging in sexual harassment and against supervisors or managers who knowingly allow such behavior to continue; (4) clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful; (5) include an internal complaint form that employees can use to report conduct that they believe is sexual harassment; (6) explain that complaints of sexual harassment will be investigated promptly and that the investigations will be as confidential as possible and that the rights and interests of all parties will be protected; (7) include information concerning the federal and state laws that prohibit sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws; and (8) inform employees of their right to file a complaint with the New York State Division of Human Rights, the Equal Employment Opportunity Commission, federal or state court, or a local police department.

The final FAQs (available here) offer additional guidance for employers. Specifically,

  • Distribution: The policy must be provided to employees in writing or electronically. If the policy is made available on a work computer, employees must be able to print a copy.
  • Contractors & Non-Employees: The policy does not have to be distributed to contractors and other non-employees. However, because the State Human Rights Law has been extended to cover non-employees who bring sexual harassment claims, employers are “encouraged” to provide the policy to non-employees and anyone providing services in the workplace.
  • Complaint Form: The complaint form does not need to be included in full in the policy, but the policy should be clear about where the form may be found (g., on an internal website).
  • Investigation Procedure: The policy must describe the employer’s internal investigation procedure. The investigation procedure does not, however, have to be identical to the investigation procedure set forth in the State’s model policy.
  • Acknowledgment of Receipt: Employers are not required to obtain or keep a signed acknowledgment that an employee has read the policy, but are encouraged to do so.
  • Languages: The policy must be provided to employees “in the language spoken by their employees.” The State will publish additional model policy and complaint forms in Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole. When a model is not available in an employee’s language, employers may provide that employee with an English version.
  • New Employees: New employees should receive a copy of the policy prior to commencing work.
  • Optional Poster: The State also issued an optional Sexual Harassment Prevention Policy Notice, which is a poster that employers may display in the workplace. The poster simply directs employees and non-employees to the employer’s sexual harassment prevention policy. Posting the State’s Notice is optional. A Microsoft Word version is available here.

Training

The New York State law also requires employers to provide all employees with annual, interactive sexual harassment prevention training. In a key difference between the draft and the final FAQs, the deadline for complying with the training requirement has been extended to October 9, 2019 (previously, it was January 1, 2019). Moreover, employers are no longer required to train new employees within 30 days of hire, but rather are encouraged to provide training “as soon as possible.” The practical effect of these changes is that many employers will likely want to wait to conduct sexual harassment training until after the New York City law goes into effect on April 1, 2019. Our prior Alerts on the New York City law are available here and here.

For employers that choose to create their own training rather than adopt the State’s model, the training must be interactive and include all of the following: (1) an explanation of sexual harassment consistent with State guidance; (2) examples of conduct that is considered unlawful sexual harassment; (3) information about federal and state laws covering sexual harassment and available remedies; (4) information regarding the employer’s procedure for the timely and confidential investigation of complaints, including the specific name(s) of appropriate personnel and location to submit complaints; (5) information addressing supervisor conduct and additional responsibilities of supervisors; (6) an explanation of how to raise sexual harassment complaints with government agencies and courts; and (7) prohibitions on retaliation with examples.

Additional guidance as set forth in the final FAQs regarding sexual harassment training is as follows:

  • Annual: Employees must receive training annually, which can be based either on the calendar year, anniversary date of each employee’s start date, or any other date the employer chooses.
  • Who must be trained: All workers, regardless of immigration status, including exempt and non-exempt employees, part-time workers, seasonal workers, and temporary workers, must be trained. Non-employees, such as third-party vendors, contractors, volunteers, or consultants do not need to be trained. Employers may deem the training requirement satisfied for new employees who received compliant training from a prior employer in the past year if the new employee can verify completion through a previous employer or a temporary help firm.
  • Interactive: The FAQs offer the following examples of trainings that would meet the “interactive” requirement: (i) if the training is web-based, it has questions at the end of a section and the employee must select the right answer; (ii) if the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner; (iii) for in-person training, if the presenter asks the employees questions or gives them time throughout the presentation to ask questions; and (iv) the training provides a Feedback Survey for employees to turn in after they have completed the training. An training in which the individual only watches a video or reads a document, with no feedback mechanism or interaction, is not considered interactive.
  • Languages: Employers must provide training to employees “in the language spoken by their employees.” The State will publish model training materials in Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole. When a model is not available in an employee’s language, employers may provide that employee with training in English.
  • Records: Employers are not required to maintain copies of training records, but are encouraged to do so.
  • Duration: There is no specific time requirement for the length of the training.
  • Time and Payment for Training: Any training time must be counted as regular work hours.

Non-Disclosure Agreements Involving Claims of Sexual Harassment

As of July 11, 2018, New York employers have been prohibited from including an NDA in any settlement of a claim involving sexual harassment that would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment, unless the complainant requests confidentiality.

The final FAQs clarify that the law will not operate like the analogous provisions of the Older Workers Benefit Protection Act. Specifically, waivers cannot be included in settlement agreements that can be presented and executed on the spot in a single document. Rather, if the complainant requests confidentiality, the terms must first be provided to all parties; the complainant must have 21 days to consider the provision; and, after 21 days, if confidentiality is still the complainant’s preference, the provision must be memorialized in a separate agreement signed by all parties. The complainant then has 7 days to revoke the agreement, which shall not be effective or enforceable until the revocation period expires. The 21-day review period is not waivable, so it cannot be shortened, even if the complainant so desires. The FAQs also clarify that there must be two agreements: (1) an agreement that memorializes the preference of the person who complained, and (2) the settlement agreement itself.

As always, Seyfarth Shaw attorneys are available to assist with any questions or concerns you have regarding the New York State Sexual Harassment Laws.

By Esther Slater McDonald

Seyfarth Synopsis: The New York Court of Appeals’ ruling on questions regarding the use of criminal convictions in hiring will impact employers and may impact the background screening industry, the temporary staffing industry, and other businesses requiring its affiliates or contractors to adhere to certain criminal history guidelines.

In Griffin v. Sirva, Inc., 835 F.3d 283 (2016), the United States Court of Appeals for the Second Circuit certified several questions to the New York Court of Appeals, seeking clarification on provisions of the New York States Human Rights Law relating to consideration of criminal convictions in hiring.

The Background Facts

Trathony Griffin and Michael Godwin worked for Astro Moving and Storage Company, a company providing local warehouse and transportation services in New York. Astro had an agency contract with Allied Van Lines to provide household moving services on behalf of Allied.  Pursuant to the contract, all Astro employees working on Allied jobs were required to pass criminal background checks.  Allied engaged a third party to conduct the background checks and to apply Allied’s adjudication guidelines.  Under Allied’s guidelines, a felony conviction for any sexual offense disqualified an individual from working on Allied jobs.  That disqualification applied only to Allied jobs; it did not prohibit an individual from working for Astro on non-Allied jobs.

Griffin and Godwin were employed by Astro. At some point, Astro required them to undergo background checks so that they could continue to work on Allied jobs.  The background checks revealed that both men had been convicted of felony sexual offenses and were designated as “Sexually Violent Offenders.”  According to Griffin and Godwin, Astro terminated them after receiving their background reports.

Sometime later, Griffin and Godwin sued Allied and Sirva, Inc., a holding company related to Allied, alleging that they had violated the New York State Human Rights Law by denying them employment because of their criminal convictions or, alternatively, by requiring Astro to deny them employment because of the convictions.

The New York State Human Rights Law

Section 296 of the New York State Human Rights Law.  Section 296(15) generally makes it unlawful for “any person, agency, bureau, corporation, or association … to deny … employment to any individual” because of a criminal conviction unless there is a direct relationship between the criminal offense and the employment at issue or the employment would involve an unreasonable risk to property or to the safety or welfare of individuals or the general public.  Section 296(6) also makes it unlawful for “any person to aid, abet, incite, compel or coerce” a violation of Section 296(15).

The Litigation

The district court entered judgment for Allied and Sirva.  The district court held that only employers can be liable for denying employment and that, to be liable for aiding and abetting a denial of employment, a business must be a joint employer of the individual denied employment.   The court determined that Allied and Sirva were not “employers” or “joint employers” of Griffin or Godwin.

On appeal, the Second Circuit cast doubt on the district court’s ruling and concluded that the New York State Human Rights Law may apply to Allied and Sirva even though they did not employ Griffin and Godwin. The Second Circuit stated that Section 296(15) applied to “any person, … corporation, or association,” and thus the Section may apply to companies other than employers.  Even if Section 296(15) is limited to “employers,” the Second Circuit concluded that the term “employer” could be read to encompass entities like Allied and Sirva.  Last, the Second Circuit stated that the standard for aiding and abetting liability was unclear and indicated that New York may have intended for the provision to have a broad reach that encompasses non-employers, including contracting parties, regardless of their intent.

Because New York courts have not determined who may be liable under Section 296(15) or addressed the scope of Section 296(6) liability for businesses, the Second Circuit certified the following issues to the New York Court of Appeals for it to decide:

(1) Does Section 296(15) of the New York State Human Rights Law, prohibiting discrimination in employment on the basis of a criminal conviction, limit liability to an aggrieved party’s “employer”?

(2) If Section 295(15) is limited to an aggrieved party’s “employer,” what is the scope of the term “employer” for these purposes, i.e. does it include an employer who is not the aggrieved party’s “direct employer,” but who, through an agency relationship or other means, exercises a significant level of control over the discrimination policies and practices of the aggrieved party’s “direct employer”?

(3) Does Section 296(6) of the New York State Human Rights Law, providing for aiding and abetting liability, apply to § 296(15) such that an out-of-state principal corporation that requires its New York State agent to discriminate in employment on the basis of a criminal conviction may be held liable for the employer’s violation of § 296(15)?

The New York Court of Appeals accepted the certification, and oral argument in the case is expected to occur later this year.

The Takeaway

Employers, staffing agencies, background screeners, and others should be watching Griffin v. Sirva, Inc. How the New York Court of Appeals will rule on the certified questions is uncertain.  The court could interpret Section 296 narrowly to apply only to employers, or the court could interpret the section broadly in a manner that expands liability to non-employers.  Regardless of the outcome, any ruling is likely to provide guidance to employers and others, which will enable businesses to better manage risk.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Background Screening Compliance & Litigation Team.