Harvey Weinstein, Matt Lauer, Senator Al Franken, Les Moonves, Brett Kavanaugh, and President Donald Trump all have at least one thing in common: they have accelerated the #MeToo movement and inspired a new focus in state legislatures. This environment has triggered new state laws intended to address sexual harassment and assaults in the workplace. While some ABA Section of Litigation leaders are skeptical about whether this legislation will effectively reduce workplace harassment, plaintiffs clearly have additional statutory tools and claims to seek redress in the courts.
Since 2017, as a reaction to the publicity surrounding these and other high-profile cases, 15 states have passed new laws protecting against sexual harassment in the workplace. New York, California, and Illinois have led the way with new laws focusing on mandatory sexual harassment training, softening the federal “severe or pervasive” standard to make it easier to sue in state courts, and banning the nondisclosure agreements that predators have used to silence victims and protect their careers. New state laws also prohibit mandatory predispute arbitration clauses, lengthen statutes of limitations, and expand workplace harassment protections to apply to independent contractors.
For some Section of Litigation leaders, state legislative action to address these issues was necessary. “The pendulum has swung, and confidentiality provisions have been abused by powerful people with deep pockets who can afford to buy silence,” says David Gevertz, Atlanta, GA, cochair of the Section’s Employment & Labor Relations Law Committee. “The courts, however, were too slow and legislation was the quickest way to address the issue, so we will have to wait and see the long-term impact of the new laws,” Gevertz notes. “I would have preferred courts to have been more liberal in permitting discovery, rather than enacting legislation,” he adds.
Other Section leaders have concerns that the new laws will do more to increase litigation than to actually reduce workplace harassment. “People are upset, and we all want less harassment. I am just not sure these new laws get us there,” opines Jeff Brodin, Phoenix, AZ, cochair of the Section’s Employment & Labor Relations Law Committee. “It is anyone’s guess about whether the laws will be effective,” agrees Shira Forman, New York, NY, cochair of the Programming Subcommittee of the Section’s Employment & Labor Relations Law Committee. “In the near term, making employees aware of the new laws simply just might lead to more claims,” she adds.
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.
These new laws demand heightened employer vigilance to ensure compliance. “It is important to understand in this environment that workers need education and training to understand the costs of harassment claims,” says Darryl G. McCallum, Baltimore, MD, cochair of the Programming Subcommittee of the Section’s Employment & Labor Relations Law Committee. “These new laws make it easier to bring a claim and ultimately make it more expensive for employers,” observes McCallum.
But more training may not be a complete answer for eliminating workplace harassment. “They somewhat missed the ball. Sexual harassment training has not worked. It is much more important for employers to teach respect in the workplace than it is to know how to report a harassment claim,” opines Brodin. “Employers who create an environment of dignity and respect in the workplace will avoid harassment claims,” he notes, “while employers who maintain a problematic culture will not, regardless of the amount of training a legislature requires.” An employer’s best course is to take the high road. “Employers should do their best job to take the law seriously in terms of training,” says Brodin, “and treat their employees right.”
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.
Defenses to sexual harassment claims are also evolving with the #MeToo legislation. For example, in New York, an employer may defend against a sexual harassment claim by establishing that the “harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”
Although states are free to enact legislation that is more restrictive than federal statutes, some Section leaders question whether changing the burden of proof is necessary. “Weakening the substantive legal standard to require less than the federal ‘severe or pervasive’ standard in state court will not change the results,” says Gevertz. Plaintiffs’ lawyers can already avoid the federal “severe or pervasive” standard by pleading state law claims for assault, battery, negligent hiring, and negligent supervision.
The publicity associated with high-profile harassment cases has created a new awareness among potential juries of the effect of workplace harassment. “Jurors are sensitive to the news about celebrities, and during moments like the present, juries tend to become more liberal in their verdicts, regardless of whether the standard is ‘severe or pervasive’ or not,” opines Gevertz. “Jurors will fine-tune the standards in ways that outstrip the laws,” he adds, “and jury justice is much more efficient than legislative justice. Changing the laws is an inefficient way to get the same result.”
In response to reporting about Harvey Weinstein (among others) using confidentiality agreements to silence victims, Congress in December 2017 amended section 162(q) of the tax code to prohibit “ordinary and necessary” business expense deductions for “any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement.” Attorney fees related to such a nondisclosure agreement also are not deductible as a business expense. To further curb abuse, state legislatures in California, New Jersey, New York, Tennessee, Vermont, and Washington have also adopted different approaches to curtail the use of nondisclosure settlement agreements.
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.
“People are upset,” observes Brodin, “so I agree that there is a need to limit confidentiality provisions.” Other Section leaders, however, anticipate negative consequences from the new antagonism to confidentiality. “I don’t like the laws because now clients will wonder whether they should fight instead of settle because there is no way to obtain confidentiality,” suggests Gevertz. “It might lead to attempts to circumvent the statutes by, for example, dropping the sexual harassment claims and then settling,” he adds.
Maryland, New Jersey, New York, Vermont, and Washington have also passed laws prohibiting pre-arbitration agreements, class action waivers, and jury trial waivers in sexual harassment cases. Maryland, for example, makes null and void any agreement that waives any substantive or procedural right regarding sexual harassment or retaliation. New Jersey makes unenforceable contracts that waive any substantive or procedural right or remedy related to discrimination, retaliation, or harassment. New York prohibits employers from including predispute arbitration clauses for sexual harassment, declaring such clauses null and void. Vermont similarly prohibits agreements that waive a substantive right or remedy related to sexual harassment, and makes such provisions void and unenforceable. Finally, Washington provides that an employment agreement is null and void if it requires an employee to waive rights under state or federal antidiscrimination laws or to litigate in a confidential forum.
Counsel who advise employers on human resources and antidiscrimination issues should keep abreast of these evolving state statutory schemes. “The big risk I see is that many people are unaware of the changes in the laws and will keep doing things the same way with the same templates,” says Gevertz. “Perhaps it will take one or two well-publicized malpractice cases for the uneducated lawyers to understand the risks of not staying current,” he suggests.
