THE ASSEMBLY CHAIR

STATE OF NEW YORK Commission on Administrative Regulations

Review
ALBANY COMMITTEES
Alcoholism & Drug Abuse
Corporations, Authorities & Commissions
Consumer Affairs
Dan Quart Judiciary
Member of Assembly Tourism, Parks, Arts & Sports Development
RD
73 District

Comment from State Assemblymember Dan Quart

On the Draft Model Sexual Harassment Policies, Complaint Form and Training
Document
September 12, 2018

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
York’s workforce. Unfortunately, the documents released in late August won’t 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.

Process
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 aren’t 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.”

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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 isn’t
possible when sexual harassment is reported; the person accused of harassment, managers,
and HR representatives, among others, may be notified of the report. Victims shouldn’t 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 doesn’t 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.

Failures
Beyond the drafting errors and inconsistencies, these documents include some very real
conceptual failures, detailed below.

The model complaint form requests the victim’s 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 they’ve filed complaints with any federal,
state or local agencies, whether they’ve filed suit and whether they’ve hired an attorney. None
of these factors are relevant to a company’s 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 York’s workplace, it’s essential to start over
with a truly public process.