Sexual Harassment in the Workplace: Important Changes for Employers

By Glenn A. Duhl, Esq.

Following the prevalence of the Time’s Up and #MeToo movements, there have been several changes to laws governing sexual harassment in the workplace. This year, Connecticut became the latest state to pass a new sexual harassment law, which included a revamp of sexual harassment notice and training requirements for employers as well as additional protections and remedies for employees. New notice and training requirements have also recently been implemented in New York.

On the other hand, although Massachusetts and Rhode Island currently have notice requirements in place, employers in these states are not yet required to provide training to employees. This article focuses on the most significant changes in the law facing Connecticut employers, and continues by comparing notice and training requirements that exist across New York, Massachusetts, and Rhode Island.

Connecticut: Governor Lamont signed the state’s new sexual harassment prevention legislation into law on June 18, 2019. Effective October 1, 2019, all employers must provide supervisors with two hours of training on federal and state sexual harassment laws and available remedies. All employers with at least three employees must provide this training to all their employees. The training must be done by October 1, 2020, or within six months of the hiring date or assumption of supervisory authority. Employees who have already received this training after October 1, 2018 do not need to be retrained. Employers must provide supplemental training at least every 10 years to keep employees updated.

Also, all employers with at least three employees must email every employee – with a subject line that includes the words “Sexual Harassment Policy” or the like – a copy of a notice explaining the illegality of sexual harassment as well as the remedies available to victims. This requirement is in addition to posting such notice in a prominent and accessible location in the workplace. If an employee has not shared an email address, then the employer must post the notice on its website or provide employees with a link to the Commission on Human Rights and Opportunities (CHRO) website that contains the required notice.

Employers who fail to comply with the new notice and training requirements face a penalty of $750 for each violation and the loss of a valuable defense.

The new Connecticut law allows a CHRO representative to enter an employer’s business during normal business hours to ensure compliance with the notice and training requirements:

  1. when the CHRO “reasonably believes” that the employer has violated the notice or training requirements, or
  2. within the 12-month period after a CHRO complaint has been filed against the employer.

Any inspection may not “unduly disrupt” business operations.

Additional protections and remedies for employees under the new Connecticut law include:

  • Prohibiting employers from unilaterally taking corrective action against an employee when the employee complains about sexual harassment in the workplace, such as relocating or reassigning an employee
  • Extending the deadline for filing CHRO complaints to 300 days after the date of the alleged act
  • Allowing the award of damages, reasonable attorney’s fees, and costs in CHRO hearings
  • Allowing Connecticut courts to award punitive damages in employment discrimination cases, overruling a 2016 Connecticut Supreme Court decision.

New York State: As of last year, all employers are required to adopt a sexual harassment policy created and published by the NYS Department of Labor (NYSDOL), or a policy that meets or exceeds the NYSDOL’s policy. Employers must provide this policy to all employees in writing.

Employers are required to provide annual interactive training to all employees either by using the model training program created and issued by the NYSDOL, or a training program that meets or exceeds the state’s model program.

New York City: In addition to NYS law, New York City recently introduced its own notice and training requirements. Employers in NYC are required to conspicuously place sexual harassment rights and responsibilities posters in both English and Spanish, and distribute a factsheet to individual employees at the time of hire, the latter of which may be included in an employee handbook.

NYC employers with 15 or more employees, including interns, must also provide annual interactive sexual harassment training for all employees. Training must take place within 90 days of initial hire. Employers are required to keep training records, including signed employee acknowledgments, for three years.

Massachusetts: Employers with six or more employees are required to adopt a written policy against sexual harassment. The policy must include notice to all employees that sexual harassment in the workplace is unlawful as is retaliation against an employee for filing a sexual harassment complaint. The policy should also assert the employer’s commitment to investigate any complaint of sexual harassment.

It is recommended that the employer’s policy also include, at a minimum, a description and examples of sexual harassment, a statement of the range of consequences for employees found to have committed sexual harassment, a description of the process for filing internal complaints about sexual harassment, and the identity of appropriate state and federal employment discrimination enforcement agencies. Employers must provide new employees with a copy of the policy upon commencement of employment and provide all employees with a written copy of the policy on a yearly basis. Employers are also required to post the policy in a conspicuous area in the workplace.

Massachusetts employers are not yet required to provide sexual harassment education and training. However, employers are encouraged to provide training on a regular basis, and to provide additional training for supervisors on specific responsibilities and steps to take to ensure appropriate corrective action is taken in addressing harassment complaints.

Rhode Island: Any employer with 50 or more employees must adopt a policy against sexual harassment that includes statements that both sexual harassment and retaliation against an employee for filing a sexual harassment complaint are unlawful. The notice must also include a description and examples of sexual harassment, a statement of the range of consequences for employees found to have committed sexual harassment, a description of the process for filing internal complaints about sexual harassment, and the identity of appropriate state and federal employment discrimination enforcement agencies.

Employees must provide a written copy of the sexual harassment policy to all employees, both at the time of employment and upon request. Employers must also maintain copes of the written policies at their business premises. Rhode Island law does not require employers to provide sexual harassment education and training programs but encourages employers to provide such training to all new employees and supervisors within one year of commencement of employment or a supervisory position.

With these laws in mind, employers should review their notice and training policies to ensure compliance in their state and/or municipality. In conducting this review, employers should pay attention to the recent changes, which reflect a trend to educate all employees. Employers who comply with the new requirements will not only avoid penalties, but will also be better equipped to defend against any sexual harassment complaint brought by an employee.

Glenn A. Duhl is a management-side employment and litigation lawyer at Zangari, Cohn, Cuthbertson, Duhl & Grello P.C. Contact: (203) 786-3709; gduhl@zcclawfirm.com; www.zcclawfirm.com.

The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.

Image courtesy of Flex Jobs