The #MeToo Movement in the Workplace: Legislative Updates & Refresher

By Glenn A. Duhl, Esq.

#MeTooNew York lawmakers at both the state and local level have responded to the #MeToo movement by enacting dramatic changes to existing laws on workplace sexual harassment. Because these changes are taking effect incrementally, it is all the more important for employers in New York State and New York City to keep track of the new policy and training requirements to ensure compliance in the workplace. The following overview is meant to inform New York employers of these new requirements and suggest steps that can be taken in order to prepare. Also included is an overview of Connecticut legislation.

New York State: The new legislation, aimed at combating sexual harassment in the workplace, includes the following provisions:

  • Protection for Non-employees (effective April 12, 2018): It is an unlawful discriminatory practice for an employer to permit the sexual harassment of a non-employee, including independent contractors, subcontractors, vendors, and/or consultants. Under this provision, an employer may be held liable for failure to take appropriate and immediate corrective action, taking into account degree of employer’s control over the alleged harasser.
  • Sexual Harassment NDAs barred (effective July 11, 2018): Employers are prohibited from including nondisclosure agreements in sexual harassment claim settlements, agreements, or other resolutions unless the provision of confidentiality is the complainant’s preference. In such cases, the complainant must be given 21 days to consider the agreement, and seven days to revoke signature after signing.
  • Sexual Harassment Arbitration ban (effective July 11, 2018): Employers are prohibited from requiring employees to sign contracts that mandate arbitration for sexual harassment claims. Moreover, existing mandatory arbitration clauses can no longer be enforced with respect to sexual harassment claims.
  • Anti-Harassment Policy Requirement (effective October 9, 2018): All employers must adopt either the sexual harassment prevention policy created and published by the New York State Department of Labor (NYSDOL), or a policy that meets or exceeds the state prevention policy’s minimum standards, and provide the policy to all employees in writing. Importantly, the policy must:
  • Prohibit sexual harassment and include examples of prohibited conduct;
  • Identify state and federal harassment laws and remedies;
  • Include a complaint form;
  • Set forth an investigation procedure;
  • Provide a list of judicial and administrative forums for adjudicating harassment complaints;
  • State that harassment constitutes employee misconduct, and that employees who commit harassment and supervisors who knowingly allow it to continue will be sanctioned; and
  • Prohibit retaliation for harassment complaints.
  • Anti-Harassment Training Requirement (effective October 9, 2018): Employers must provide annual 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. The anti-harassment training must be interactive, and must include:
  1. An explanation of sexual harassment;
  2. Examples of sexual harassment;
  3. Information concerning state and federal harassment laws and remedies;
  4. Information concerning employees’ rights of redress and available forums for adjudicating harassment complaints; and
  5. Information concerning supervisors’ conduct and responsibilities.

The NYSDOL Model Sexual Harassment Prevention Policy and Model Training are available online.

New York City: The new legislation aims at addressing and preventing sexual harassment in the workplace. It increases the statute of limitations in cases of gender-based harassment from one year to three years and expands protections to all employees regardless of the size of the employer. In addition, it includes the following requirements:

  • NYC Poster and Info Sheet Requirement (effective September 6, 2018): Employers must conspicuously displace anti-harassment rights and responsibilities posters in both English and Spanish, and distribute a factsheet to individual employees at the time of hire. The factsheet may be included in an employee handbook. Both the poster and factsheet are available through the NYC Commission on Human Rights’ website resources about sexual harassment.
  • NYC Anti-Harassment Training Requirement (effective April 1, 2019): Employers with 15 or more employees, including interns, must provide annual “interactive” anti-harassment training for all employees. Training must take place with 90 days of initial hire. The NYC Commission will issue a model training module online in the coming months, which must include a discussion of “bystander intervention.” Employers must keep training records, including signed employee acknowledgments, for three years.

Connecticut (overview): Existing law requires Connecticut employers with three or more employees to provide notices in the workplace (in prominent and accessible locations) that say sexual harassment is illegal, and address what the remedies are for such harassment. A model poster prepared by the CT Commission on Human Rights and Opportunities that complies with the statute’s requirements is available here.

Similarly, Connecticut employers who have 50 or more employees must provide two hours of training and education to all supervisory employees within six months of their assumption of a supervisory position. The format of the training should be conducted in a classroom-like setting, using clear and understandable language, and in a format that allows participants to ask questions and receive answers. Further, the training must also include discussion of six discrete topics such as what the state and federal laws say, what types of conduct could be considered sexual harassment, and discussing strategies for preventing such harassment.

What employers everywhere need to understand is that, in an effort to reduce incidents of sexual harassment in the workplace – more widely exposed as a result of the #MeToo movement – legislatures are requiring employers to educate their workforce and then holding them accountable for the workplace conduct of those employees. To that end, the time for professing ignorance of the type of conduct that constitutes sexual harassment is fast coming to a close, and employers must get onboard to protect both their employees and themselves. #timesup

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.