Transgender, remote workers get new protections under revised sexual harassment rules 

Remote workers can still be victims of workplace sexual harassment, and using the wrong name or pronouns to refer to transgender co-workers could be considered harassment, under policy updates announced Tuesday by state officials.

"Remarks made over virtual platforms and in messaging apps when employees are working remotely can create a similarly hostile work environment" to instances of in-person harassment, according to the new policy language.

The changes come as the pandemic has increased instances of remote work, and legal challenges have put the transgender community in the crosshairs in some states. Under the updated policy, which builds on rules first rolled out in 2018, the state Department of Labor clarified that discrimination against transgender or nonbinary individuals constitutes gender-based discrimination, a form of sexual harassment.

"Sexual harassment includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity, and the status of being transgender," according to the new policy.

The agency said the changes are meant to help the state modernize its rules regarding employer responsibilities and worker protections.

“Sexual harassment can happen anywhere,” labor commissioner Roberta Reardon said in an interview. “We want people to know that they have a responsibility to train their employees. It’s good for workers and it’s good for their employers, as well.”

Labor and employment lawyer Jessica M. Baquet, partner at Ruskin Moscou Faltischek in Uniondale, said employers will need to make sure they swiftly address issues of discrimination of nonbinary and transgender workers to avoid potential problems, especially considering the political climate surrounding trans identities. 

“To the extent that we’re seeing an increase in backlash against people for their gender identity in other places, New York wants to come out ahead of that and take a strong stance that we have strong policies in place to protect individuals," Baquet said. 

Baquet said in many ways, the changes to the state's harassment policies have brought it more in line with New York City's harassment and discrimination laws, which have largely made employee protections more robust.

The state is "putting emphasis on certain topics that are perhaps more prevalent today than they were four years go," Baquet said. 

As part of the updates, the state also rolled out a new interactive video with accompanying presentations for employers to use in training workers.

The Labor Department, in collaboration with the New York State Division of Human Rights, drafted the updates using suggestions from state residents and other stakeholders during an open comment period and public hearing.

The state first put in place its Sexual Harassment Prevention Model Policy in 2018, requiring employers of all sizes to adopt a sexual harassment prevention policy and provide workers with annual training.

Under that legislation, the state must review and revise the policy every four years.