Sexual Harassment Update: How Lawmakers are Working to Transform the #MeToo Movement into Harassment Free Workplaces
In 2017, the #MeToo movement rocked American culture, changing the landscape of many industries throughout the country. The call for accountability when addressing sexual harassment in the workplace has been widespread and hard-hitting. At this point, it’s safe to assume a major cultural shift is here as a result of the hashtag movement.
Consequently, organizations meant to protect employees are aggressively working to build on the momentum created by the #MeToo movement to facilitate the implementation of harassment-free workplaces. The Equal Employment Opportunity Commission (“EEOC”), which is tasked with enforcing the laws that prohibit workplace discrimination and harassment, recently released its preliminary data for fiscal year 2018, which revealed just how the organization has been impacted by the hashtag movement in 2018. In particular:
1. The EEOC increased the number of sexual harassment suits it elected to pursue by more than 50 percent from fiscal year 2017, and
2. Charges filed with the EEOC alleging sexual harassment increased more than 12 percent from fiscal year 2017.
The EEOC has indicated that it will continue to promote harassment-free workplaces through its investigative and litigative powers in the upcoming years. The EEOC has also reconvened its Select Taskforce on the Study of Harassment in the Workplace to continue analyze and strategize the most effective ways of eradicating harassment in the workplace.
At the state level, lawmakers throughout the country have responded to the #MeToo Movement in 2018 by enacting new legislation aimed to combat sexual harassment in the workplace.
Leaders in implementing legislation to address workplace harassment include: California, New York, and Delaware.
On the whole, California has passed the most sweeping legislation regarding sexual harassment, which will make it harder for employers to defend cases at the summary judgment stage of litigation. In particular:
- Senate Bill 1300 (“SB 1300”), which takes effect at the January 1, 2019, makes notable changes to the California Fair Employment and Housing Act (FEHA) and expands protections for employees from harassment in the workplace in the following ways:
- Lowering the burden of proof needed to establish sexual harassment and specifically approving the standard set forth in Ruth Bader Ginsburg’s concurrence in Harris v. Forklift Systems, 510 U.S. 17 (1993), which states that the plaintiff only needs to prove that the harassment they endured “so altered working conditions as to make it more difficult to do the job.”
- Stating that a single incident of harassing conduct is sufficient to prove a hostile work environment claim.
- Noting that “harassment cases are rarely appropriate for disposition on summary judgment.”
- Mandating that the nature of the workplace is irrelevant for determining the standard to utilize for determining whether a hostile work environment existed.
- Expanding employers’ potential liability for acts by nonemployees with respect to all types of unlawful harassment – not just sexual harassment.
- Denying a prevailing defendant from being awarded attorney’s fees and costs unless the court finds the action was “frivolous, unreasonable, or groundless.”
- Prohibiting an employer from requiring an employee (as condition of employment or for raise or bonus) to sign a release of claim or right under FEHA, a nondisparagement agreement, or other agreement that would prohibit the disclosure of information about unlawful acts in the workplace, including sexual harassment.
- Senate Bill 820 (“SB 820”) prohibits non-disclosure provisions in settlement agreements relating to civil or administrative complaints of sexual assault, sexual harassment, or harassment or discrimination based on sex. SB 820 authorizes provisions that preclude the disclosure of a settlement amount as well as provisions that protect the identity of the victim as long as a government agency or public official is not a party to the agreement.
- Assembly Bill 3109 (“AB 3109”) voids and makes unenforceable any agreements entered into on or after January 1, 2019 that include provisions requiring a party to waive his or her right to testify in a legal proceeding (pursuant to a court order, subpoena, or written request from administrative agency or legislature) regarding alleged sexual harassment.
- Senate Bill 1343 (“SB 1343”) expands the scope of sexual harassment training and mandates that, by January 1, 2020, employers with 5 or more employees (including temporary and seasonal) provide at least two (2) hours of sexual harassment training to all supervisory employees and at least one (1) hour of sexual harassment training to all nonsupervisory employees within six months of assuming their position, and once every two (2) years thereafter.
In early 2018, New York state and New York City lawmakers passed bills meant to mandate sexual harassment procedures and training in the workplace. These bills act as a blueprint for companies to follow to ensure compliance:
- Senate Bill 7848-A (“SB 7848-A”) requires all New York employers, regardless of size, to adopt a written sexual harassment policy and to provide sexual harassment training annually to all New York employees by October 9, 2019.
- Local Law 96 of 2018 requires New York City employers with 15 or more employees to provide annual sexual harassment training after 90 days of initial hire for all employees who work 80 or more hours per calendar year in New York City beginning on April 1, 2019. The new law requires that all covered employees receive the required training by April 1, 2020.
Additionally, New York state has passed legislation prohibiting the use of mandatory arbitration clauses and non-disclosure agreements relating to sexual harassment claims. Non-disclosure agreements will be unenforceable unless the employee prefers to include a non-disclosure provision in an agreement. Employees must be given 21 days to consider the settlement agreement and decide whether they prefer to include a non-disclosure provision, and then 7 days after the agreement is signed to revoke the agreement.
Delaware has also passed a bill that will ensure employers and employees are better informed about sexual harassment:
- House Bill 360 (“HB 360”) requires employers with 50 or more employees to provide interactive sexual harassment training. The requirements are as follows:
- All existing employees must receive interactive sexual harassment training by January 1, 2020.
- All new employees must receive interactive sexual harassment training within one year of employment.
- Additional training is required for every employee every two years thereafter.
- Existing supervisors are required to receive interactive sexual harassment training by January 1, 2020.
- New supervisors must receive interactive sexual harassment training within one year of employment as a supervisor.
- All supervisors must receive additional training every 2 years thereafter.
- If an employer provides sexual harassment training which meets the requirements of the new law prior to January 1, 2019, no additional training is required until January 1, 2020.
While these states were among the first to adopt new legislation, it is unlikely that they will be the last. Now is the time for employers to understand the newly passed sexual harassment legislation that apply to their companies and prepare to implement the new mandates in these states. Multi-state employers must stay apprised of developments in the laws governing sexual harassment on the horizon for other states and may wish to get ahead of the curve and implement changes that meet the new sexual harassment mandates in states throughout the country.
By: Mia A. Conza
Mia A. Conza is an attorney in the Firm’s Labor and Employment Practice Group. If you have any questions or concerns about this issue or any other matter, please contact Mia directly at 813-223-1099.
EEOC Releases Preliminary FY 2018 Sexual Harassment Data (2018, October 4). Press release. Retrieved from: https://www.eeoc.gov/eeoc/newsroom/release/10-4-18.cfm
EEOC Select Task Force on Harassment Hears from experts on How to Prevent Workplace Harassment. Press release. Retriever from: https://www.eeoc.gov/eeoc/newsroom/release/6-11-18.cfm