Category Archives: Sexual Harassment

NEW LAW: DC To Require Sexual Harassment Training for Tipped Employees

Attention DC Employers, on October 23, 2018, the District of Columbia Mayor signed the “Tipped Wage Workers Fairness Amendment Act of 2018.”  While this law repealed Initiative 77 (discussed in NEW LAW – Washington DC Elimination of Tip Credit Repealed) and imposed new posting requirements on all DC employers (discussed in COMING SOON: New Posting Requirements for All DC Employers), the new law also imposes the following new requirements on employers of tipped employees:

Mandatory Sexual Harassment Training For Tipped Employees

Employers will be required to provide sexual harassment training to their tipped employees and managers.  This training must be either through a course developed by the Office of Human Rights (OHR) or from an OHR-certified provider. Continue reading NEW LAW: DC To Require Sexual Harassment Training for Tipped Employees

NEW CASE: Harassment Policies Should be Provided In Multiple Languages

In a recently decided federal case (Tinoco v. Thesis Painting, Inc.), the United States District Court, for the Southern District of Maryland held that a company’s  anti-discrimination policy, was “defective or dysfunctional” because it was provided to employees only in English.

In this case, a female employee claimed that she had been sexually harassed by her male coworker.  The company attempted to avoid liability using the Faragher/Ellerth affirmative defense.  Under this defense, an employer may avoid liability for co-worker harassment if the employer exercises reasonable care to prevent and correct promptly any harassing behavior, among other things.  “Exercising care” can be demonstrated by implementing and distributing an effective harassment policy.

Here, the Court found that the company’s anti-discrimination policy was ineffective because it was only distributed to employees in English.  The alleged harasser only spoke Spanish and did not understand any English.  Therefore, he was unable to read or understand the policy. Continue reading NEW CASE: Harassment Policies Should be Provided In Multiple Languages

NEW GUIDANCE: New York Publishes Sexual Harassment Materials In Several Languages

As all New York employers are aware, earlier this year, New York enacted an expansive set of laws relating to sexual harassment, which went into effect earlier this month.

Earlier this month, the New York State Department of Labor released English versions of a Model Sexual Harassment Policy, Model Complaint Form, Training Requirements, and FAQs, which are available here.

On October 17, 2018, the New York State Department of Labor released translated versions of these documents in the following languages: Chinese, Haitian-Creole, Korean, Italian, Polish, Russian, and Spanish, which are available here.

One of the requirements under these new laws is the requirement that employers provide sexual harassment training materials and policies to their employees in the employee’s primary language.   If the New York State Department of Labor has not translated a document into the language spoken by an employee, an employer is considered in compliance by providing the employee English language documents.

EEOC Reports Uptick In Sexual Harassment Claims for 2018

On October 4, 2018, the EEOC announced preliminary sexual harassment data for FY 2018 (which ended September 30, 2018).  The end result — sexual harassment claims are on the rise.

According to the preliminary report,

  • The number of EEOC charges filed alleging sexual increased over 12% in 2018
  • The  EEOC filed 66 harassment lawsuits (41 of which included allegations of sexual harassment), this is a 50% increase from 2017.
  • The EEOC recovered nearly $70 million for victims of sexual harassment through litigation and administrative enforcement (an increase from $47.5 million recovered in 2017).

Continue reading EEOC Reports Uptick In Sexual Harassment Claims for 2018

Good News For New York Employers – The Deadline To Provide Employees With Sexual Harassment Training Has Been Extended

On October 1, 2018, the New York State Division of Human Rights and Department of Labor published the final versions of the model anti-harassment training program and a model sexual harassment policy.  See our previous article (NEW GUIDANCE:  New York State Final Sexual Harassment Model Policy & Sexual Harassment Training Programs Released) for information about the final materials.

Employers are required to adopt and provide a copy of their sexual harassment prevention policy to all employees by October 9, 2018.  In addition, employers are required to display the new sexual harassment prevention policy poster in a prominent location in the workplace no later than October 9, 2018.

It is recommended that New York employers take immediate steps to comply with these new requirements.

The good news for employers, the deadlines to provide sexual harassment training have changed.

With respect to providing sexual harassment training to new hires, the final guidance materials remove the proposed  30-day deadline by which newly-hired employees must complete their first mandatory anti-harassment training.  Instead, there is not any set deadline and the State “encourages training of of new hires as soon as possible.”  (NOTE:  New York City employers will be required to train new hires in New York City within the first 90 days of employment).

With respect to providing sexual harassment training to existing employees, the final guidance materials postpone the deadline by which all employees in New York State must complete their first annual mandatory anti-harassment training to October 9, 2019.

NEW GUIDANCE: New York State Final Sexual Harassment Model Policy & Sexual Harassment Training Programs Released

As reported earlier (NEW GUIDANCE: New York State Publishes DRAFT Model Sexual Harassment Policy and Training), in late August, the New York State Division of Human Rights and Department of Labor published draft versions of model anti-harassment training program and a model sexual harassment policy.   The publication of these materials was in compliance with these agencies’ obligations under New York State’s new anti-harassment law. As a reminder, this law:

  • Prohibits employers from using a mandatory arbitration provision in an employment contract in relation to sexual harassment;
  • Requires that nondisclosure agreements can only be used when the condition of confidentiality is the explicit preference of the victim; and
  • Amends the Human Rights Law to protect contractors, subcontractors, vendors, consultants, or others providing services in the workplace from sexual harassment in the workplace.
  • Establishes minimum standards for sexual harassment prevention policies and sexual harassment training. All employers operating in New York State must either adopt and use the State’s model policy and training as-is or use the models as a basis to establish their own policy and training.

Continue reading NEW GUIDANCE: New York State Final Sexual Harassment Model Policy & Sexual Harassment Training Programs Released

NEW POSTER: Illinois Requires Anti-Harassment Poster

Attention Illinois employers … starting September 18, 2018, state employers, employers with federal contracts, and employers with 15 or more employees are required to  display the Illinois Department of Human Rights’ Sexual Harassment and Discrimination in the Workplace posting in a prominent location in the workplace.

It is recommended that all affected Illinois employers verify that they have complied with this new posting requirement.

NEW LAW: New Sexual Harassment Training Requirements For California Employers

California Governor Jerry Brown recently signed Senate Bill 1343 into law.  This new law makes several significant changes to California’s sexual harassment training requirements.

#1 Applies to more employers (and more employees too)

The most impactful change to the sexual harassment training requirements is that the requirement has been extended to smaller employers and to all employees.

Under the new law, California employers with five or more employees are required to provide sexual harassment training.  This training must be provided to both nonsupervisory and supervisory employees (including all temporary and/or seasonal employees) as follows:

  • Existing Nonsupervisory Employees: At least 1 hour of sexual harassment training by January 1, 2020.  Thereafter, sexual harassment training must be provided once every two years.
  • Nonsupervisory Employees hired after January 1, 2020: At least 1 hour of sexual harassment training within 6 months of the employee’s hire date.  Thereafter, sexual harassment training must be provided once every two years.
  • Temporary or Seasonal Employees: At least 1 hour of sexual harassment training within 30 calendar days after the hire date or within 100 hours worked if the employee will work for less than six months.
    • NOTE: If the employee is employed by a temporary services employer, the training must be provided by the temporary services employer, not the client.
  • Existing Supervisory Employees: At least two hours of sexual harassment training must be provided by January 1, 2020.  Thereafter, sexual harassment training must be provided once every two years.
    • NOTE: For employers who employ 50+ employees (i.e. those who were previously required to provide sexual harassment training to their supervisory employees), they are not required to comply with the January 1, 2020 training deadline.  Instead, they are still required to provide sexual harassment training to supervisory employees every two years.
  • Supervisory Employees hired after January 1, 2020: At least 2 hours of sexual harassment training within 6 months of the employee’s hire date.  Thereafter, sexual harassment training must be provided once every two years.

#2 DFEH Must Develop Online Training Program

Under the new law, the Department of Fair Employment and Housing (DFEH) is also required to develop two online training courses (one for supervisory employees and one for non-supervisory employees) and make them available on the DFEH website at no cost to the employer.  The programs must be interactive and include questions that a viewer is required to answer before he/she can continue the program.  Finally, the programs must be available in a variety of languages including English, Spanish, Simplified Chinese, Tagalog, Vietnamese, and Korean.

Employers are not going to be required to use these DFEH-developed training programs.

#3 What about the training program content?

It is important to note that the required content for the sexual harassment training programs has not changed.  This means that under existing (and the new law), the training programs for all employees must contain the following elements:

  • Information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment
  • Information and practical guidance regarding the federal and state statutory provisions concerning the remedies available to victims of sexual harassment in employment.
  • Practical examples aimed at instructing employees in the prevention of harassment, discrimination, and retaliation,
  • Information regarding abusive conduct (i.e. Bullying) and
  • Information regarding harassment based on gender identity, gender expression, and sexual orientation.

Also, the training must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.

Take Home For Employers

All California employers must take steps to ensure that they provide the newly required sexual harassment training to all employees.

NEW LAW: New Requirements For California Talent Agencies

California Governor Jerry Brown recently signed Assembly Bill 2338 into law.  This new law places new training requirements for talent agency employers.

First, talent agencies must make educational materials regarding sexual harassment prevention, retaliation, and reporting resources to an adult artist within 90 days of the talent agency agreeing to represent that artist.  The materials must be in the language understood by that artist and must include, at a minimum, the components specified in the Department of Fair Employment and Housing’s Form 185.

In addition to the above materials, talent agencies must also provide the artist with educational materials regarding nutrition and eating disorders within 90 days of the talent agency agreeing to represent that artist.  The materials must be in the language understood by that artist and must include, at a minimum, the components specified in the National Institute of Health’s Eating Disorders Web site (www.nimh.nih.gov/health/topics/eating-disorders/index.shtml).

Finally, prior to issuing an entertainment work permit to a minor (between 14 to 17 years of age), the parent/legal guardian and the minor must receive and complete training in sexual harassment prevention, retaliation, and reporting resources.  The training must be administered by a third-party vendor, on-site, electronically, via Internet Web site, or other means. The training must be in the language understood by that the minor and his guardian and must include, at a minimum, the components specified in the Department of Fair Employment and Housing’s Form 185.

This new law goes into effect on January 1, 2019.

NEW LAW: California Enacts Wide Reaching Law In Response to #MeToo Movement

California Governor Jerry Brown recently signed Senate Bill 1300 into law.  This new law amends the California Fair Employment and Housing Act in direct response to the #MeToo movement.  While many of the provisions of this new law address legal issues (e.g. amending the standard for a §998 offer in a sexual harassment claim and providing “legislative guidance to the California courts relating to workplace harassment law), there are a few issues that impact employers and the workplace directly.

Release of Claims and Non-Disparagement Agreements

The first aspect of this law that directly impacts the employment relationship is the new limitations on releasing certain types of claims and on non-disparagement agreements.  Under the new law, it will be unlawful for an employer to require an employee to sign a release of a FEHA claim “in exchange for a raise or bonus, or as a condition of employment or continued employment.” In addition, it will also be unlawful for an employer to require an employee to sign a non-disparagement agreement which denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.

Expanding Employer Liability for Harassment

The new law also makes employers liable for third-party harassment [not just sexual harassment] if the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.  Previously, employers could only be held responsible for sexual harassment committed by nonemployees under this standard.

Optional “Bystander Intervention” Training

Finally, the new law suggests that employers provide “bystander intervention training” to employees in order to give employees the tools to know how to aid others and speak up about unlawful or problematic behaviors in the workplace.  This training, should employers choose to provide it, should include information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training can also include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.

This new law goes into effect on January 1, 2019.