Legal

Anything that causes an individual to feel harassed, discriminated against or treated unfairly, in any way, has huge ripple effect and isn't only relevant to your immediate employees. Whether you're a large company with many employees or a close-knit start-up, harassment laws apply to you and need to be handled with the utmost care. While we are not representing legal advice, here are more recent additions to the law that are important to note.

Mandatory Sexual Harassment Training for Almost All Companies

  • California, Delaware, Maine, and New York have enacted new training requirements concerning sexual harassment. In California, for example, the Fair Employment and Housing Act now requires employers with five or more employees to provide at least two hours of interactive sexual harassment prevention training to all supervisory employees and at least one hour of such training to all nonsupervisory employees.
  • New York now requires all employers to provide annual interactive sexual harassment prevention training to employees. At the local level, New York City requires all employers with 15 or more employees or independent contractors to provide annual, interactive, anti–sexual harassment training to all employees and independent contractors. Delaware requires employers with 50 or more employees to provide interactive sexual harassment training to all employees. Maine now directs employers to use a checklist prepared by the Maine Department of Labor to develop their sexual harassment training programs and requires such training for all employers with 15 or more employees. - Read More Here

 

Softening the Federal “Severe and Pervasive” Standard

  • New York, California, Delaware, and Washington have also enacted new laws to make it easier to bring workplace sexual harassment claims in state court. Under Title VII of the Civil Rights Act of 1964, actionable conduct must be “severe or pervasive.” The new state laws soften this standard, which has frequently resulted in employer summary judgments in federal court. Washington, for example, now defines “sexual harassment” as unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact, or other verbal or physical conduct or communication of a sexual nature. Such conduct is prohibited if submission to that conduct is made a term or condition of employment, if it affects the recipient’s employment, or if it interferes with one’s work performance or creates an intimidating, hostile, or offensive work environment. The behavior does not have to be severe or pervasive to give rise to a claim.
  • Similarly, in California and New York, “a single instance of harassment can unreasonably interfere with the workplace or create a prohibited environment of harassment,” says McCallum. Employers in California also may be held liable for harassment committed by nonemployees if the employer knew, or should have known, of the offending conduct. Individuals in California also may be held personally liable, along with their employer, for harassment.
  • Some state laws now impose heightened reporting and disclosure requirements to regulatory authorities. Illinois, for example, requires employers to disclose to the Illinois Department of Human Rights by July 1, 2020, and each July 1 thereafter, the total number of final adverse sexual harassment administrative rulings against them and whether any equitable relief was ordered. - Read More Here

 

Eliminating Nondisclosure Agreements to Hide Harassment

  • California passed three new laws that impact nondisclosure provisions. First, a claimant cannot be silenced in California from disclosing factual information concerning actionable behavior, but a claimant may elect to keep his or her identity confidential. Second, California law voids contracts that prevent a party from testifying about actionable conduct when compelled to do so by lawful process. Finally, California makes it an unlawful employment practice to require an employee to sign a nondisclosure agreement that denies the claimant the right to disclose information about actionable conduct.
  • New Jersey similarly declares confidentiality agreements that conceal the details of a harassing behavior to be against public policy and unenforceable, while also protecting a claimant’s identity. New York likewise provides that employers may not include nondisclosure provisions in settlement agreements resolving sexual harassment claims, unless confidentiality is requested by the complainant, and prohibits nondisclosure agreements that prevent employees from communicating “factual information related to any future claim of discrimination” to government agencies. New York does permit, however, the amount of a settlement to remain confidential.
  • Illinois passed the Workplace Transparency Act, which prohibits any “contract, agreement, clause, covenant, waiver or other document” that restricts an employee from reporting allegations of unlawful conduct to federal, state, or local officials for investigation. Tennessee provides that an employer shall not require an employee to execute or renew a nondisclosure agreement concerning sexual harassment claims. Vermont similarly prohibits concealment of sexual harassment facts by agreement. Finally, Washington voids any nondisclosure agreement that prevents an employee from disclosing sexual harassment or sexual assaults as a condition of employment. - Read More Here