If You Witness Sexual Harassment at Work in New York: Bystanders, Coworkers and Supervisors

If you see or hear sexual harassment at work in New York, your position depends on your role. Under New York State's model sexual harassment prevention policy, an employee who witnesses harassment is encouraged to report it, and a supervisor or manager who witnesses it is required to report it.⁠^[1] Whatever your role, federal, New York State and New York City law each forbid retaliation against a person who testifies or assists in a discrimination proceeding.⁠^[3][4][5]

This page covers three things: what a bystander can do, what supervisors and managers are expected to do, and how the law protects people who back up someone else's complaint.

Can harassment aimed at someone else affect me?

Under New York State's model policy, yes. The policy states that "the impacted person does not need to be the intended target of the sexual harassment."⁠^[8] It describes sexual harassment as including unwelcome conduct whose purpose or effect unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.⁠^[8]

So, in the model policy's terms, a person who works alongside the conduct without being its target can also be an impacted person. The guide to what counts as sexual harassment in New York sets out the definitions under each law.

What can a bystander do?

The 2023 version of New York State's model policy added a section on bystander intervention. It describes "five standard methods of bystander intervention that can be used when anyone witnesses harassment or discrimination and wants to help."⁠^[2]

1. Interrupt. Engage with the person being harassed and distract them from the harassing behavior, as the State's model policy describes.⁠^[9]
2. Get help. A bystander who feels unsafe interrupting alone can ask a third party to help intervene, the second method in the State's model policy.⁠^[9]
3. Record. Record or take notes on the incident, the third method in the State's model policy.⁠^[9]
4. Check in. Check in with the person afterward, the fourth method in the State's model policy.⁠^[9]
5. Name it, if safe. If it is safe to do so, confront the harasser and name the behavior as inappropriate, the fifth method in the State's model policy.⁠^[9] The policy adds that physically assaulting an individual is never an appropriate response.⁠^[9]

These are options, not obligations, and the model policy frames them for a person who "wants to help."⁠^[2] On the third method, recording a conversation has its own legal rules; read the guide to recording conversations at work before recording anything. Written notes of what you saw, with the date, time, place and the names of others present, raise none of those issues.

In New York City, bystander intervention is also a training topic. Employers with 15 or more employees have to give annual interactive anti-sexual harassment training under the City law, and the required content includes information about bystander intervention.⁠^[10][11]

Does a coworker have to report what they saw?

New York State's model policy draws a line between coworkers and supervisors. "Any employee witnessing harassment as a bystander is encouraged to report it. A supervisor or manager that is a bystander to harassment is required to report it."⁠^[1]

For coworkers who do decide to report, the model policy sets few formalities. Use of the complaint form is not required; a verbal complaint or an email is treated with equal priority; and a complaint on behalf of another employee is acceptable.⁠^[12][13] The guide on how to report harassment at work explains what a report should say.

A practical point: the person who was targeted may have strong views about whether, when and how the conduct is reported. Speaking with them first, where that is possible and safe, is often the considerate course. It is a practical suggestion, and it does not apply in the same way to supervisors, whose position is described next.

What are supervisors and managers expected to do?

More. The duties below come from New York State's model policy and from the State statute that sets the minimum content of every employer's policy.

• Report. Under the State's model policy, a supervisor or manager who is a bystander to harassment is required to report it.⁠^[1]
• Do not wait for a complaint. The State's model policy says managers and supervisors "should not be passive and wait for an employee to make a claim of harassment. If they observe such behavior, they must act."⁠^[7]
• Expect accountability. The State's model policy says supervisors and managers can be disciplined for failing to report suspected sexual harassment or for allowing it to continue after they know about it.⁠^[7]
• The policy has to say so. Under New York Labor Law § 201-g, the State's model policy has to state that sanctions will be enforced against individuals engaging in sexual harassment "and against supervisory and managerial personnel who knowingly allow such behavior to continue."⁠^[14] Every employer has to adopt that model policy or one that equals or exceeds its minimum standards.⁠^[15]
• Training covers it. The State's model training, which employers have to provide every year in that form or an equal one, has to address conduct by supervisors and their additional responsibilities.⁠^[16][17]

The State's own training materials give an example. In a case study, a coworker persistently uses a transgender employee's former name and the wrong pronouns, and a supervisor tells the employee to let it go. The State's answer is that the supervisor "is required to report any claim of gender discrimination" and, by telling the employee to ignore the behavior, "is not fulfilling the responsibilities of a manager."⁠^[18] That is training material, not a court ruling.⁠^[18]

When the harasser is a customer or client

The State's guidance says a manager who witnesses harassment by a third party, such as a customer or client, is obligated to accommodate the needs of the employee, including by reassigning the employee away from the harassing customer or asking the customer to leave.⁠^[19]

Why a supervisor's knowledge matters to the employer

Under City law and a federal regulation, what a supervisor knows can count as the employer's knowledge. Under the New York City Human Rights Law (NYCHRL), an employer is deemed to have knowledge of an employee's discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility.⁠^[20] Under the federal EEOC regulation on harassment between fellow employees, an employer is responsible where it, or its agents or supervisory employees, knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.⁠^[21]

The guides on employer liability for supervisors and coworkers and duties of managers and small employers cover this in detail.

Are witnesses protected from retaliation?

Yes, under each layer of law, in slightly different words.

Layer	What protects a witness or supporter
Federal (Title VII)	It is unlawful to discriminate against a person because the person "testified, assisted, or participated in any manner in an investigation, proceeding, or hearing."⁠[3] Informal opposition is also protected, including expressing support for coworkers who have filed formal charges.⁠[22]
New York State Human Rights Law (NYSHRL)	It is unlawful to retaliate against any person because the person opposed forbidden practices or "filed a complaint, testified, or assisted in any proceeding."⁠[4]
New York City Human Rights Law (NYCHRL)	It is unlawful to retaliate "in any manner" against a person who opposed a forbidden practice, testified or assisted in a proceeding, or assisted the NYC Commission on Human Rights in an investigation.⁠[5] It is separately unlawful to coerce, intimidate, threaten or interfere with a person because that person aided or encouraged someone else in exercising a protected right.⁠[23]

Court decisions add detail to these provisions:

• Answering investigators' questions. In Crawford v. Metropolitan Government of Nashville, the U.S. Supreme Court held that Title VII's protection extends to an employee who speaks out about discrimination not on her own initiative but in answering questions during an employer's internal investigation.⁠^[6]
• Being named as a witness. The federal appeals court that covers New York has held that Title VII's protection extends to an employee who is named as a voluntary witness in a coworker's Title VII suit but is never called to testify.⁠^[24]
• Speaking up as a supervisor. Under the NYCHRL, the New York Court of Appeals found that a supervisor opposed discrimination when she made clear to her superior that she thought his treatment of a subordinate was wrong, even though she did not say in so many words that the subordinate was a discrimination victim.⁠^[25]

New York State also requires every employer's policy to state clearly that retaliation against individuals "who testify or assist in any proceeding under the law is unlawful."⁠^[14] And the State's model policy protects a person who acted on a good-faith belief that the practices were unlawful, even if the conduct turns out not to violate the law; it does not protect intentionally false charges.⁠^[26]

What about people close to the person who complained?

Federal law can reach retaliation aimed at someone else. In Thompson v. North American Stainless, the U.S. Supreme Court dealt with an employer that fired the fiancé of an employee who had filed an EEOC charge; the Court said it expected that firing a close family member will almost always meet the federal test, and that a milder reprisal against a mere acquaintance will almost never do so.⁠^[27] See retaliation against witnesses and family members.

What if handling complaints is my job?

HR and compliance staff are in a particular position under federal law. The federal appeals court that covers New York has held that an employee whose job is to report or investigate other employees' discrimination complaints does not engage in protected opposition merely by doing that job.⁠^[28] The same decision says such an employee is protected if she actively supports other employees in asserting their rights or personally complains about, or is critical of, the employer's discriminatory practices.⁠^[28]

What should I expect if I am interviewed?

New York State's model policy describes an investigation that is prompt and thorough, that seeks to interview all parties involved, including any relevant witnesses, and that is kept confidential to the extent possible.⁠^[29][30] The guide to what happens in an HR investigation walks through the stages.

If you are asked what you saw, say what you actually saw and heard, and say so when you do not know or do not remember. Nobody on either side should press a witness to change an account: the EEOC's guidance gives badgering a subordinate to give a witness statement, and trying to coerce her to change it, as an example of conduct that is not reasonable, protected opposition.⁠^[31]

Afterward, keep your own dated notes of when you were interviewed and by whom, and note any change in how you are treated. The guide to documenting workplace harassment covers record-keeping, and retaliation after reporting sexual harassment explains what counts as retaliation under each law.