It has been five years since the EEOC’s Select Task Force on the Study of Harassment in the Workplace concluded that harassment prevention training in the United States simply was not working. See https://bit.ly/3A2yx6d. A little more than a year later, the #MeToo movement began to take shape. Reuters reminds us in Timeline: The Harvey Weinstein story: From studio to courtroom in 40 years that on October 5, 2017, The New York Times profiled Harvey Weinstein’s settlement of claims from eight women alleging sexual harassment and unwanted contact. See https://reut.rs/3ymdkng. Later revelations only got worse. That month, Alyssa Milano, Tarana Burke, and millions of other women would make #MeToo common parlance and spark international debate.
Of course, harassment is not only sexual, and mistreatment along gender lines is not limited to the workplace, but the EEOC’s report and the #MeToo movement put a spotlight on workplace sexual harassment.
States have taken note. In addition to limiting mandatory nondisclosure provisions in hostile work environment settlement agreements and curbing forced arbitration, many states have focused on sexual harassment prevention training. In the wake of #MeToo, jurisdictions like Delaware, the District of Columbia, Illinois, New York, Vermont, Washington State, and New York City instituted various forms of private sector training requirements. In addition to training mandates, states have attempted to equip employers with compliance tools. A snapshot of select state developments helps us understand those approaches.
Providing Model Training
Some states describe the required training format and content. Others supply model training materials. For example, in May 2020, Illinois issued a model sexual harassment training presentation. Although the use of this specific model is not required, offering a template helps eliminate one barrier to compliance.
Providing a Model Policy
According to National Women’s Law Center’s 2020 Progress Update: MeToo Workplace Reforms in the States, since 2018, at least six states (Connecticut, Illinois, Louisiana, New York, Oregon, and Virginia) created new public or private sector employer requirements for maintaining or directing the development of an anti-harassment policy. See https://bit.ly/3C7qKGg.
One of those, Oregon, released a model policy for that purpose. The Oregon Workplace Fairness Act of 2019 mandated that employers adopt a policy prohibiting harassment and discrimination by October 1, 2020, with coverage of specific criteria. As in Illinois, Oregon’s specific model is not required, but employers must be sure to include all of the required information in their own policy, and the model assures that this goal is met.
Offering Free Training
Unsurprisingly, California enacted a law requiring sexual harassment prevention training in 2004, before most states and before #MeToo. The law has seen numerous amendments, and at least one change is designed to help promote compliance. In June 2020, the California Department of Fair Employment and Housing released a free online training class to help employers fulfill the mandate that all employers with five or more employees provide a minimum of one hour’s sexual harassment prevention training to all non-supervisory personnel by January 1, 2021.
Expanding the Audience for Mandatory Training
States have also expanded the training audience. California attempted to clarify training requirements in September 2020 by passing an amendment mandating harassment training for age-eligible minors (defined as ages 14-17) and their guardians in the entertainment industry. Recognizing a particular problem in the field, the state required that the training be completed before the state would issue an entertainment work permit.
Modifying Training Requirements to Account for COVID-19
Connecticut was an early adopter of sexual harassment prevention training requirements in 1992 (second only to Maine in 1991 and followed by California in 2004), and the state expanded its coverage in 2019 to apply to more employers and nonsupervisory employees. As a result, Connecticut employers are well versed in the requirement, but things got complicated once the pandemic hit. In light of COVID-19, the state extended the October 1, 2020 training deadline to May 20, 2021. The state’s modification of the requirement represents its acknowledgment of changed circumstances and its commitment to upholding training standards under difficult conditions.
Possibilities for Future Federal Legislation
Although there is no federal mandate governing sexual harassment prevention training for private employers, some members of Congress want to change that. In April 2019, the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination (BE HEARD) in the Workplace Act was introduced by U.S. Representative Katherine Clark and Senator Patty Murray. Among other things, the bill proposed requiring the Equal Employment Opportunity Commission to create an employer training requirement. The bill did not pass into law, but it stood as an example of what might be possible at the federal level and a model for states. Even in the absence of federal legislation or applicable state mandate, the #MeToo movement still resonates and reminds us that sexual harassment prevention efforts must remain a priority.