legallines #MeToo on the Move
Sexual Harassment Laws Impacting Employers | By Robin Sheridan, JD, MILR
E
ver since the #MeToo and #TimesUp movements shined a national media spotlight on sexual harassment in the workplace, state legislatures have passed bills regarding various aspects of sexual harassment. The latest guidance may require employers to take additional action in developing policies and procedures related to sexual harassment, and training employees to respond to workplace issues and promote safe work environments. It is imperative that EA professionals are aware of these developments. Legal Updates In the past 30 months, elected officials in numerous states passed more than 260 laws directly addressing topics supported by anti-sexual harassment initiatives. Most of the proposals are related to the actions of legislators and government employees, but some are directed toward other employers – those in the private sector specifically. In summary: Twelve states (Arizona, California, Delaware, Illinois, Louisiana, Maryland, Nebraska, New York, Oregon, Tennessee, Vermont, and Washington) enacted laws that affect both private and public employers. Eight states (California, Delaware, Florida, Louisiana, Maine,
Maryland, New York, and Oregon) passed legislation that requires regular sexual harassment training for employees at various levels. Four (Maryland, New York, Vermont, and Washington) limited employers’ ability to enforce mandatory arbitration for workplace sexual harassment claims in employee contracts. The impact of these legislative moves may be blunted by the Supreme Court of the U.S.’s decision in Epic Systems Corporation v. Lewis.
At the state and local levels, these laws have more variations, and the combination or types of laws indicate the direction or impact of certain industries, locales, and other factors. Hall Render attorneys surveyed a few states’ legislative developments as examples. California S.B. 1300 is a comprehensive bill that creates and amends state laws on sexual harassment in the workplace. It went into effect on January 1, 2019. The bill makes it unlawful for employers to require employees to sign non-disparagement or other agreements prohibiting employees from disclosing unlawful acts in the workplace, including sexual harassment, as conditions of employment or continued employment.
The law also expands sexual harassment liability for employers where the harassment is committed by a non-employee, such as a customer or vendor, and limits employers’ rights to fees as a prevailing defendant. The law permits employers to provide bystander training that encourages and enables an active response to assist victims rather than remaining silent. Finally, the law provides guidance for courts in applying the new harassment laws. As but one example, by 2020 employers with five or more employees must provide sexual harassment prevention training to both supervisory and non-supervisory employees at least once every two years. New York As of January 1, 2019, all state contractors must submit a declaration that they have a sexual harassment prevention policy that adheres to at least a minimum set of criteria and that they provide annual training to all employees. By October 9, 2019, all public and private employers in the state are required to adopt a sexual harassment policy meeting those same minimum criteria and provide copies and yearly training to employees. Beginning April 1, 2019, the Stop Sexual Harassment in NYC
8 | JOURNAL OF EMPLOYEE ASSISTANCE | 2nd Quarter 2019 | • • • • • • • • • • • • • • • • • • • • | W W W . E A PA S S N . O R G |