- Several jurisdictions have 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. Notably, New York state, New York City, Delaware, and Washington state have passed such legislation.
New York state
New York state’s budget for the 2019 fiscal year included workplace anti-sexual harassment measures that impact both private and public employers. They included:
- 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 are 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 developed;
- 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 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.
HB 360 provides broader protections for Delaware workers against sexual harassment than those found at the federal level by defining sexual harassment as an unlawful employment practice and clarifying the definition of employee to include state employees, persons providing services pursuant to a contract, or unpaid interns. As of Jan. 1, 2019, employers with four or more employees must distribute a Sexual Harassment Notice developed by the state’s Department of Labor to new employees at the commencement of employment, and to all existing employees by July 1, 2019. Employers with 50 or more employees must provide interactive sexual harassment prevention training to all employees, including supervisors, and the training must be conducted every two years.
In March 2018, Washington state enacted a package of bills to address sexual harassment in the workplace that took 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” was tasked with developing model policies for preventing workplace sexual harassment, and best practices for employers and employees. These were made publicly accessible on the Human Rights Commission’s website in 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.