The #MeToo movement has placed sexual harassment on the front pages of newspapers, has galvanized some states to reconsider their own sexual harassment laws, and has encouraged employers to take a closer look at their policies and procedures. With such heightened awareness of sexual harassment, employers may feel an inclination to resolve doubts in favor of the accuser.  A recent Second Circuit decision, however, illustrates a counterweight to this outlook.
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Employers who operate in New York State and City are likely aware of the new sexual harassment laws that are starting to take effect.  Many companies have already revised their sexual harassment policies to comply with the new laws, but now face the hurdle of complying with the sexual harassment training requirements under both the State and City laws.  While there is overlap between the State and City requirements, there are differences that employers should note.
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Since President Lyndon B. Johnson signed Executive Order 11246 in 1965, the Office of Federal Contract Compliance Programs (OFCCP) has been charged with ensuring nondiscrimination and affirmative action for females in employment. In 1970, regulations were issued to further this goal, known as the Sex Discrimination Guidelines, codified at 41 CFR Part 60-20. Those guidelines have not been substantially updated in the 46 years since. Until now, that is. The DOL acknowledges the Guidelines have become “out of touch with current law and with the realities of today’s workforce and workplaces.” See: OFCCP Fact Sheet on Sex Discrimination Final Rule. So, the OFCCP is bringing the Guidelines “from the ‘Mad Men’ era’ to the modern era.’”
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