On March 3, 2021, New York City Mayor Bill DeBlasio issued Executive Order No. 64 (“EO”), which, effective immediately, imposes new sexual harassment reporting requirements on “human services” providers who contract with the City.  The EO requires the Department of Investigation (“DOI”) to review information about sexual harassment complaints and provide its findings to any City agency that contracts with the disclosing provider.

“Human services” is defined by the relevant section of the Administrative Code to include “day care, foster care, home care, homeless assistance, housing and shelter assistance, preventive services, youth services, and senior centers; health or medical services including those provided by health maintenance organizations; legal services; employment assistance services, vocational and educational programs; and recreation programs.”

The EO mandates that all City agencies that contract with outside entities for the provision of human services amend existing contracts to require that the contractors provide information about sexual harassment complaints, whether made by an employee, client, or other person.  Specifically, such amendment shall require the contractor to make available to the DOI the following:

  • The contractor’s anti-harassment policies, including reporting procedures (to be submitted to the DOI via PASSPort, the City’s digital procurement portal);
  • Any complaint or allegation of sexual harassment, or retaliation on the basis of a sexual harassment complaint, brought by any person against the Chief Executive Officer or equivalent principal of the organization in any venue, including the organization’s internal equal employment opportunity process. The contractor should redact the names and identifying information of individuals, except the accused, and provide the complaint to the DOI within 30 days of receipt via secure means to be determined by the DOI;
  • The final determination or judgment concerning any such complaint, also redacted as to the name and identifying information of individuals other than the accused; and
  • Any additional information the DOI requests in order to effectuate its review of any investigation and determination, including redacted information.

The contractor’s Board of Directors or “equivalent authority” must certify annually that it has made all required disclosures or that it has no new information to report.  Notably, the EO does not give contractors the discretion to withhold unsubstantiated complaints or allegations.  The reporting obligations under the EO do not relieve the contractor of its duty to investigate sexual harassment complaints or allegations, or of any other contractual obligations.

The DOI, upon review of a contractor’s disclosures, will share its findings with City agencies, which may consider the findings, as well as a contractor’s failure to comply with the disclosure requirements, when awarding or renewing a contract.  City agencies are to begin immediately amending existing contracts to include the new disclosure requirements and ensure that all future contracts reflect these provisions.

Epstein Becker & Green is continuing to monitor these developments and will provide further updates as they become available.

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