Outlawing Sexual Harassment
Last month, New York Gov. Andrew Cuomo signed a bill that expands the state’s anti-sexual harassment protections for non-employees and could leave employers liable for sexual harassment directed toward subcontractors, vendors, consultants or any other individual providing services in the workplace.
Effectively immediately, the legislation mandates that employers could be held responsible if the company, its agents or supervisors were aware or should have been aware that any of these non-employees were subjected to sexual harassment and the organization did nothing to address it.
The new law also dictates that, as of Oct. 9, 2018, employers must conduct annual sexual harassment prevention training and distribute a written sexual harassment prevention policy to employees. And, in July of this year, nondisclosure provisions in settlement agreements pertaining to sexual harassment claims will be prohibited, unless the complainant wishes that such stipulations be included.
Also in April, the New York City Council passed the Stop Sexual Harassment in New York City Act, a package of bills that requires employers with 15 or more employees to provide annual training designed to prevent sexual harassment. The Act, which Mayor Bill de Blasio is expected to sign soon, also extends the statute of limitation to file harassment claims from one year to three years.
Meanwhile, in Pennsylvania, Gov. Tom Wolf has voiced his support for a package of legislation with similar aims. For example, Pennsylvania lawmakers have proposed lengthening the time in which victims and whistleblowers can file a sexual harassment claim in court from 180 days to two years. If passed, the legislation would also allow these individuals to seek punitive damages in workplace discrimination cases.
As a Boston-based partner in Nixon Peabody’s labor and employment group, David Rosenthal says he “cannot speak to the likelihood of any particular bill passing” in either New York or Pennsylvania. But he does foresee some type of sexual harassment prevention legislation being passed in most states.
“The #MeToo movement and the political fallout from high-profile cases have made these laws a political priority,” says Rosenthal. “And, to the extent that a state has not previously passed legislation on this topic, or the existing laws do not make harassment training mandatory, we can expect new legislation to pass [that] does at least that much.”
Rosenthal also anticipates legislation removing exemptions that existing laws provide for governmental agencies.
“Governmental agencies and offices, because they are so hierarchical, and because there are so many power imbalances, are ripe for this kind of misconduct.”
Sarah Bouchard, a Philadelphia-based partner at Morgan, Lewis & Bockius, points out that several states – California, New Jersey, New York and Pennsylvania, for instance – have already passed or introduced bills prohibiting agreements that restrict public disclosure of harassment allegations.
Such legislation could greatly affect how an organization handles such accusations.
“Employers who would have previously been willing to settle claims privately and quickly may now be forced to engage in litigation that is public,” says Bouchard. “Further, employees with weaker claims who might have previously received a settlement payout while preserving their privacy might be compelled to litigate publicly.”
Companies will also have to weigh the decision to challenge the portions of the emerging legislation that ban arbitration, “on the grounds that such laws possibly violate the Federal Arbitration Act and the well-settled principle of the freedom to contract,” she says, adding that employers in states such as New York should consider revisiting independent contractor agreements to expressly require compliance with anti-harassment policies.
Regardless of whatever new legislation may or may not arise, the heightened awareness surrounding sexual harassment prevention, reporting and disciplines creates a variety of potential issues for the HR function, says Rosenthal.
“In many cases, legislation requiring harassment prevention training will help HR professionals who have been advocates for such proactive steps, but have been stymied by management, which simply did not want to spend the money or have been afraid to address workplace issues directly.”
With the passage of legislation mandating training, “management now has no choice but to make this investment,” he says, adding that the challenge is to deliver this training in an effective way.
“Traditional methods–online courses, lectures by lawyers–have often not been successful,” says Rosenthal.
Rather than concentrating on the do’s and don’ts of what constitutes a hostile environment, and trying to scare potential offenders, “the focus should be on dialogue aimed at getting employees to recognize how their words and acts might be perceived by co-workers and subordinates, so that they will think twice before speaking or acting in a way that might offend colleagues. We could call this anti-obliviousness training.”
Legislation focused on sexual harassment is developing rapidly, which could create complications for HR leaders working with employees across multiple states, says Jocelyn L. Womack, an attorney at Morgan, Lewis & Bockius.
“As we have seen in New York, both cities and states are passing anti-harassment legislation,” says Womack, who is also based in Morgan Lewis & Bockius’ Philadelphia office.
Accordingly, HR leaders should work with outside counsel to stay apprised of developments in the law and to ensure compliance, she says, adding that HR must also help to increase efforts to provide training to all employees on a consistent basis, regardless of whether the law obliges them to do so.
“HR leaders should consider a live, interactive training approach, rather than a web-based approach, to maximize engagement and retention of the training material.”
Despite the groundswell of support for anti-harassment legislation, “it is uncertain whether passage of such laws will result in employees feeling comfortable coming forward with their claims,” says Womack. “HR leaders will need to work with company leadership to assess the workplace culture and take steps to help individuals feel that they can safely disclose incidents of harassment without fear of reprisal.”