States and Localities Continue to Address Workplace Harassment
- Several jurisdictions have recently passed legislation to expand employee protections, employer requirements, and available remedies for unlawful harassment in the workplace.
- All employers, regardless of size or industry, should make it a priority to address workplace harassment and take corrective action when it occurs.
As the issue of workplace harassment, particularly sexual harassment, continues to gain attention, many states and localities have taken steps to expand employee protections, employer requirements, and available remedies for unlawful harassment in the workplace. Keep in mind most U.S. employers are prohibited from discriminating in employment under anti-discrimination laws enforced by the U.S. Equal Employment Opportunity Commission. However, individual cities and states may take their own approaches to address and prevent workplace harassment. Recently, New York state, New York City, Washington state have passed such legislation.
New York state
New York state’s budget for the 2019 fiscal year includes workplace anti-sexual harassment measures that impact both private and public employers. They include:
- Prohibiting the use of nondisclosure clauses in settlements or agreements relating to claims of sexual harassment, unless the condition of confidentiality is the preference of the complainant;
- Prohibiting mandatory arbitration clauses for claims of workplace sexual harassment;
- Requiring the New York State Department of Labor and Division of Human Rights to develop a model sexual harassment prevention policy and model sexual harassment prevention training program for employers to use. All New York employers will be required to either adopt the model policy and training program, or establish their own that equals or exceeds the minimum standards that the two agencies develop;
- Mandating the distribution of written anti-harassment policies in the workplace and requiring annual anti-harassment training for all employees; and
- Expanding protections against sexual harassment under the New York State Human Rights Law to “non-employees,” including contractors, subcontractors, vendors, and consultants.
New York City
The New York City Council recently passed a package of bills, called the Stop Sexual Harassment in NYC Act, that is intended to protect public and private employees from sexual harassment. The act includes annual sexual harassment “interactive training” requirements for private employers with 15 or more employees, as well as notice requirements. This requirement is effective as of April 1, 2019.
In March, Washington state enacted a package of bills to address sexual harassment in the workplace, and they will take effect in June 2018.
One bill prohibits an employer from requiring an employee, as a condition of employment, to sign a nondisclosure agreement or other document that prevents the employee from disclosing sexual harassment or sexual assault occurring in the workplace.
Under another bill, an employment contract or agreement would be void and unenforceable if it requires the employee to waive the right to publicly pursue a state or federal discrimination claim, or if it requires an employee to resolve claims of discrimination in a dispute resolution process that is confidential.
A “work group” will be tasked with developing model policies for preventing workplace sexual harassment, and best practices for employers and employees. These would be made publicly accessible on the Human Rights Commission’s website by January 2019.
Even as states and localities continue to introduce new legislation to expand sexual harassment prevention, employers are encouraged to take steps to comply with current requirements under applicable laws to prevent and address inappropriate behavior and alleged harassment, taking corrective action where appropriate.