While the #MeToo movement does not garner the same media attention that it did at its height, harassment law has continued to evolve and employers must keep abreast of the current state of the law. The following provides a brief summary of the nationwide trends in harassment law.
Lowering the Liability Bar
The most significant trend in sexual harassment law in recent years has been the combination of expanded definitions of harassment combined with an overall weakening of employers’ affirmative defenses. At the state level, one example is New York’s statute, which states that an individual’s failure to make a complaint about the harassment to the employer shall not determine liability. This statute dealt quite a blow to employers that previously relied heavily on the affirmative defense of showing that an employee failed to follow its harassment-reporting procedures. Other states that have followed the trend of either expanding the definition of harassment or weakening employers’ defenses include California, Connecticut, Delaware, Illinois, Nevada, Oregon, and Washington.
In addition to these statutory changes, several courts have recently issued opinions that lower the bar on what constitutes harassment under the case law and/or raise the bar for employers seeking to establish affirmative defenses.
Arbitration and Non-Disclosure Agreements
Several states have imposed limits on either the creation or enforcement of arbitration agreements that waive substantive or procedural rights and remedies related to claims of harassment, discrimination, or retaliation. These states include California, Illinois, New Jersey, New York, Washington, Vermont, and Maryland.
Like arbitration agreements, states also are developing a trend of prohibiting, to some extent, the creation or enforcement of non-disclosure agreements that limit an employee’s ability to disclose factual information related to a claim for sexual harassment, discrimination, or retaliation. States that have adopted this tend include Arizona, California, Illinois, Louisiana, Maryland, Nevada, New Jersey, New Mexico, New York, Hawaii, Oregon, Vermont, Virginia, Washington, and Tennessee.
Training, Policy, and Posting Requirements
Another popular trend is the imposition of an employer requirement to develop anti-harassment policies and training programs and to post state-mandated anti-harassment information posters around the workplace. The states that have implemented a version of these policies include California, Connecticut, Delaware, Illinois, Maine, New York, Oregon, Vermont, Virginia, and Washington.
Statutes of Limitations
Several jurisdictions also have expanded the statutes of limitations either for filing administrative complaints of sexual harassment with local government agencies or for filing a civil lawsuit in court. These statutes of limitations can range from 300 days to five years in California, Connecticut, Maryland, New York, Oregon, and Nevada.
An increasingly popular development in state anti-harassment laws is the inclusion of independent contractors and other non-employees as members of the protected class. Individuals protected in Delaware, Illinois, Maryland, New York, South Dakota, and Vermont range from applicants and unpaid interns to volunteers.
The Bottom Line
States are continuing to expand protections for employees in the area of sexual harassment, discrimination, and retaliation. This area of the law is likely to continue to expand and evolve under the current administration. Because of the nuanced requirements in each state, employers should be sure to review the laws applicable to the jurisdictions in which they operate and consult with counsel as employment issues arise. Overall, employers need to be more proactive than ever in seeking to prevent and remediate harassment when it occurs. They must also recognize that standards are changing and that what may have once been considered not actionable may now present risk.