It's only been a little more than a year since the #MeToo movement put the topic of sexual harassment at the center of our national dialogue. In addition to raising public awareness, the movement has had a significant impact on employers. Many of my clients have been busy upgrading their internal policies to help combat sexual harassment in their respective workplaces. Now, new sexual harassment laws in states such as California and New York are requiring businesses to do much more.
In New York, for example, state legislation that recently went into effect requires that employers of all sizes not only have and distribute a formal anti-sexual harassment policy, but must also deliver interactive training for all their employees annually. California's rules are similar, but recent legislation expanded requirements to small employers and non-supervisory employees beginning in 2020. Delaware also passed annual training requirements for certain employers effective January 1, 2019. In addition to New York, California, and Delaware, other states like Vermont are expanding their protections around sexual harassment to include interns (paid or unpaid), contractors, consultants, and even vendors or other non-employees providing services to a company.
It shouldn’t matter if your company is located in these states, since sexual harassment is unlawful under federal law as well. What matters is that you stay ahead of the curve and adopt policies and procedures for minimizing incidents, reporting them if they do happen and addressing the behavior immediately.
So, where do you start? The best place would be to begin by understanding the laws applicable to your company and considering how meeting some of the standards the above-mentioned states are requiring can assist you in your compliance efforts.
Update your anti-sexual harassment policy
To begin with, you should evaluate and possibly even update your anti-sexual harassment policy. If you don't have an employee handbook, now is the time to prepare one (see "hire an expert" below). If you already have an employee handbook, then your policies around preventing sexual harassment may need to be updated to include:
- a statement that prohibits unlawful sexual harassment consistent with legislation and guidance at the federal, state, and perhaps local level;
- examples of prohibited conduct that could rise to the level of unlawful sexual harassment;
- information concerning the federal and state statutory provisions concerning anti-sexual harassment, remedies available to victims of sexual harassment, and where applicable consideration for local requirements;
- An internal complaint form;
- a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
- information for employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
- a statement that clearly states that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
- a statement clearly stating that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.
The state of New York provides examples of compliant policies and forms under the state requirements here. Other state and local jurisdictions may provide model policies to assist employers covered under different laws.
Several states, including New York, California, Connecticut, Maine, Delaware, as well as New York City, require employers to provide anti-sexual harassment training to some or all of their employees. But this shouldn't be limited to employee in just those states and cities; training is strongly recommended by the Equal Employment Opportunity Commission, the agency charged with enforcing federal anti-discrimination laws, so it a good idea for everyone. Effective October 9, 2018, New York State mandates that compliant training must:
- be interactive;
- include an explanation of sexual harassment consistent with guidance issued by the state;
- include examples of conduct that would constitute unlawful sexual harassment;
- include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
- include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
- include information addressing conduct by supervisors and any additional responsibilities for supervisors.
Your state, like New York, may provide model training materials and videos, but you may also consider asking your payroll or HR provider for assistance.
Communicate with your employees
Once these anti-harassment policies are developed, you'll need to make sure that they're being adequately communicated to your employees. I recommend an email and a written letter from the company CEO or owner announcing these changes, along with instructions on where to find the new policy and training. State laws may require distribution of written policies at specific times, i.e. upon hire, annually, or require a posting of the policy in a place accessible to workers. Once the initial communication is done, I also suggest sending an email to all employees twice a year, reminding them of these policies and when upcoming training will take place.
Hire an expert
Unfortunately, all of this means more regulatory headaches for companies. It may also mean more costs. Many small businesses may not have the internal resources to address a lot of these new requirements, but that still doesn't exempt them from the laws. If you find yourself in this situation, the best thing you can do is to bring in an expert from the outside. Your best bet is your payroll or HR services provider. That way you can delegate the task to a firm that understands these evolving regulations, helping you to stay informed, so your business can get help meeting the new requirements.
Although the regulatory burdens may come with a cost, addressing the issue of sexual harassment in the workplace is long overdue. New York and California may be leading this type of worker protection but others have already joined the effort and it's my expectation that we'll see more states, and perhaps even cities, pass similar laws. But regardless of whether you are currently required by law to have formal policies and mandatory training, you should still consider these best practices. It's good business.