March 28, 2018 Sexual Assault Awareness and Prevention & Workplace Violence Awareness Month
KEEPING YOU INFORMED…
April is Sexual Assault Awareness and Prevention Month and Workplace Violence Awareness Month. This memo provides a refresher on employer obligations relating to these topics. Even if the existing laws do not apply to you, we encourage you to review your anti-sexual harassment and anti-workplace violence policies and procedures to help better ensure a safe workplace for all.
Sexual Assault and Harassment
As a general concept, sexual assault includes, among other things, unwanted sexual contact and certain forms of sexual harassment. This type of conduct, as well as sexual harassment, can occur anywhere, including in the workplace.
The last year has seen a dramatic increase in media coverage to and, overall awareness of, the issue of sexual assault and harassment, evident by the success in raising awareness of the #MeToo and #TimesUp Movements, as well as media coverage given to high profile sexual harassment claims levied against Harvey Weinstein, Steve Wynn, Mario Batali, Kevin Spacey and Matt Lauer. In addition, in 2017, the U.S. Equal Employment Opportunity Commission (“EEOC”) received 6,696 Charges alleging sexual harassment, 83.5% of which were filed by women.
New York has been, and continues to be, at the forefront of addressing sexual assault and sexual harassment. For instance, on July 7, 2015, Governor Cuomo’s “Enough is Enough” legislation was signed into law to provide protections for students on college campuses. In May 2017, and in an effort to continue addressing the safety of college campuses, the Governor ordered a comprehensive review of compliance with that law.
More recently, Governor Cuomo has included proposed legislation as part of his Fiscal Year 2019 Budget that is designed to combat sexual harassment in the workplace. Among the major provisions are proposals to prevent taxpayer funds from being used to settle sexual harassment suits, the elimination of mandatory arbitration clauses preventing sexual harassment claims from being litigated in court and the creation of uniform sexual harassment policies and procedures for all public employers.
The EEOC defines sexual harassment to encompass, among other things, “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”
Sexual harassment can range from offensive touching to verbal remarks and even lewd e-mails or text messages. Workplace sexual harassment includes sexual harassment that occurs between or among co-workers, as well as sexual harassment by customers/clients who interact with employees both within and outside of the workplace setting. It may occur even after work hours.
It is crucial that an employer take affirmative steps to ensure that its anti-harassment, including anti-sexual harassment, policy covers these situations, provides multiple avenues for reporting instances of sexual harassment (especially because sexual harassment may occur between a superior and subordinate), addresses the issue of confidentiality and effectively communicates the policy to all employees. As a best practice, any complaint of sexual harassment, whether verbal or in writing, should be thoroughly investigated and the details and results of the investigation should be formally documented.
Workplace Violence Prevention
Numerous reports estimate that approximately two million people each year will become victims of workplace violence. Workplace violence is nothing new, unfortunately, but its frequency and severity appear to be on the rise. We, therefore, recommend that employers review their workplace violence prevention policies both internally as well as with their staff.
New York State’s Workplace Violence Prevention Act, which was enacted in 2006, requires most public employers to create and implement programs aimed at preventing workplace violence and maximizing employee safety. The New York Department of Labor defines workplace violence as:
[A]ny physical assault or act of aggressive behavior occurring where a public employee performs any work-related duty in the course of his or her employment, including, but not limited to:
(i) An attempt or threat, whether verbal or physical, to inflict physical injury upon an employee;
(ii) Any intentional display of force which would give an employee reason to fear or expect bodily harm;
(iii) Intentional and wrongful physical contact with a person without his or her consent that entails some injury; or
(iv) Stalking an employee with the interest in causing fear of physical harm to the physical safety and health of such employee when such stalking has arisen through and in the course of employment.
In accordance with this Act, covered employers must, among other things, develop and implement a written policy statement regarding their workplace violence prevention goals/objectives; evaluate the workplace to determine potential workplace violence risks; develop a written workplace violence prevention program with the participation of an authorized employee representative; train and provide information to each employee on the risks of workplace violence in their workplace(s) both at the time of the employee’s initial job assignment and on an annual basis (or more frequently) thereafter; and document and comply with recordkeeping requirements for workplace violence incidents. The State Department of Labor has also developed a comprehensive guide for public employers on how to comply with these workplace violence regulations.
As with complaints of sexual harassment, a workplace violence allegation (verbal or written) should be immediately investigated and the details and results of the investigation documented. In certain instances, an employer may need to involve law enforcement in the investigation. We encourage you to consult with legal counsel when developing/modifying a workplace violence prevention program or when facing a related personnel issue.
All incidents of violence, no matter the type or where they occur, or whether they are employment-related or personal in nature, can have dire consequences on the workplace. This includes, but is not limited to, diminished employee productivity and increased potential litigation risk. Training on this topic, including training regarding the employer’s anti-sexual harassment and anti-workplace violence policies, is a critical component of preventing sexual assault and workplace violence. It also helps to mitigate the employer’s potential liability associated with sexual harassment/assault and workplace violence incidents.
The training should include, among other things, an overview of the employer’s relevant policies, guidance for management on how to communicate with employees regarding domestic violence, dating violence, workplace violence, sexual assault, sexual harassment and stalking. It should also make clear to both management and employees when the employer has an obligation to take concrete action (such as conducting an investigation) or to notify law enforcement about an incident. Perhaps most importantly, both management and employees should be trained on how to handle incidents where an employee is the victim or is the perpetrator, or where a superior harasses, assaults or otherwise commits workplace violence against a subordinate. This includes to whom an incident should be reported and when and what steps should/will be taken to prevent recurring incidents.
If you would like assistance with creating, revising, updating, implementing or providing training on anti-harassment or workplace violence prevention policies to address the topics above, or if you would like guidance with regard to a particular sexual harassment/assault or workplace violence incident, please contact Matthew J. Mehnert at firstname.lastname@example.org or one of our other attorneys.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2018
 Excluded from this Act are employers listed in Education Law § 2801-A (e.g., public school districts, New York City public schools, BOCES and County Vocational Education and Extension Boards).
 12 N.Y.C.R.R. 800.6(d)(11).
 Required only for employers with 20 or more full-time permanent employees.
 See generally 12 N.Y.C.R.R. 800.6.
 Available at: https://www.labor.ny.gov/workerprotection/safetyhealth/PDFs/PESH/WPV%20Violence%20Prevention%20Guidelines.pdf