7 minute read | October.18.2018
On October 15, 2017, the #MeToo movement began in earnest following a tweet by actress Alyssa Milano. To commemorate the one-year anniversary of the #MeToo movement, the Orrick Employment Law and Litigation Blog will analyze the effects of the movement from the employment perspective. Part 1 reviewed the movement’s impact on sexual harassment claims in the workplace, Part 2 below focuses on the legislative reaction to the movement, and Part 3 discusses how employers have responded to #MeToo.
The #MeToo movement heightened awareness regarding sexual harassment across the country. With its viral hashtag and high-profile protests like the Survivors’ March in November 2017, the movement’s momentum appeared to spark a fire in legislatures across the country. Since October 15, 2017, the recorded date of Alyssa Milano’s initial #MeToo viral tweet, advocates and lawmakers introduced an unprecedented amount of legislation on sexual harassment, presenting over 125 bills across state legislatures and Congress. One year later, this blog examines the legislation that has – and has not – already been enacted.
What’s happening at the federal level?
Congress passed legislation denying tax deductions for sexual harassment settlements with confidentiality provisions. Thus, any settlement or payment related to sexual harassment or sexual abuse made subject to a nondisclosure agreement, or any attorney’s fees related to such settlement or payment, are not deductible. The IRS has not yet issued guidance on the scope of a “settlement or payment related to sexual harassment or sexual abuse”, creating uncertainty.
Currently pending are two bills related to arbitration and reporting. The Ending Forced Arbitration of Sexual Harassment Act of 2017 would make it illegal for businesses to enforce mandatory arbitration agreements for sexual harassment and sex discrimination claims. The bill is currently in the Senate, referred to the Committee on Health, Education, Labor and Pensions. The Ending Secrecy About Workplace Harassment Act of 2017 would require annual reporting by employers of the number of settlements with employees regarding claims of discrimination on the basis of sex, including verbal and physical sexual harassment, and for other purposes. The bill is currently with the House of Representatives, referred to the House Committee on Education and the Workforce. Our take is that both bills have a slim chance of passing even if the widely expected change in control of the House occurs. Neither bill has significantly strong support in either chamber of Congress, and in any event, we predict that the President would not sign either bill.
What types of bills have passed at the state level?
Based on the deadlock at the federal level, much of the action on these issues has occurred at the state level. Advocates and state lawmakers have succeeded in passing narrow bills, with an emphasis on particular provisions rather than sweeping changes. Specific changes include:
Nondisclosure provisions in settlement agreements have been cited as a significant reason why past conduct did not come to light before the #MeToo movement. As such, legislatures have taken on restricting these provisions in settlement agreements. In the last year, multiple states passed legislation restricting the use of nondisclosure agreements and confidentiality provisions in sexual harassment and sexual assault cases. For example, Arizona now prohibits non-disclosure agreements for public officials who use public money to settle sexual assault or harassment claims.
California passed the STAND (Stand Together Against Non-Disclosures) Act, which prohibits settlement agreement provisions that prevent the disclosure of facts related to claims of sexual assault, sexual harassment or sex discrimination cases. The Act creates an exception where the complainant requests a nondisclosure provision, unless the defendant is a government agency or public official, in which case the exception is unavailable. Overall, California proposed fifteen #MeToo movement related bills, with 8 successful bills in the past year.
Vermont now requires agreements settling a sexual harassment claim to state that the employee may report sexual harassment or cooperate with any investigation thereof.
Similarly, Washington has made nondisclosure agreements generally unenforceable with respect to sexual assault or harassment claims, whether presented to the employee prior to or following an allegation of sexual misconduct in the workplace.
Sexual Harassment Training and Policies
States are making moves to mandate certain employer practices related to sexual harassment prevention. For example, Delaware and Louisiana are among a growing number of states (including California, Connecticut, and New York) that now require employers to provide sexual harassment prevention training to supervisors and/or employees.
As we previously reported, New York State and New York City now require written sexual harassment policies. Additionally, Massachusetts now requires employers with six or more employees to adopt written policies against sexual harassment, including providing notice to employees that an incident of sexual harassment occurred in the workplace and stating that retaliation related to sexual harassment reporting is unlawful.
Holding Legislatures Accountable
Many states have passed laws directly impacting their own legislatures. For instance, Louisiana established a policy on sexual harassment prevention and mandated sexual harassment prevention training for all public employees and elected officials. In Colorado, certain records related to sexual harassment investigations within the state judicial department are now subject to the Colorado Open Records Act. Delaware and Indiana adopted a requirement for a sexual harassment prevention policy and training for legislators and general assembly members. Similarly in Virginia, the Governor signed a bill mandating General Assembly members, legislative staff, etc. to complete sexual harassment training once every 2 years. In Georgia, lobbyists must now abide by a sexual harassment prevention policy. Alabama passed a bill that adopts EEOC guidelines as the official sexual harassment policy for its legislature. Maryland revised the training requirements for all state employees.
Additionally, Massachusetts unanimously approved an order that requires its House of Representatives to promote the safety and respectful treatment of all members, and spelled out a specific procedure for handling sexual harassment cases and prohibiting retaliation.
Statute of Limitations
Michigan extended the amount of time an alleged victim may sue for sexual assault. The legislature expanded the statute of limitations for sexual assault from 3 years to 10 years after the offense is committed, or the victim’s 21st birthday. This expands the statute of limitations from 3 years to as much as 20 years, depending on the time the alleged offense was committed.
However, in California, Governor Jerry Brown recently vetoed a bill that would extend the statute of limitations period of bringing sexual harassment and discrimination claims from one-year to three-years. Indeed, in his message to the legislature, Governor Brown wrote: “This extraordinary extension of the statute of limitations, which legislators chose not to apply to public institutions, is simply too open-ended and unfair.”
Turning back to changes at the federal level, Congress addressed arbitration agreements prior to the #MeToo movement. In 2010, Congress passed the “Franken Amendment” provision of the Defense Federal Acquisition Regulation Supplement (DFARS), barring defense contractors from enforcing or entering into pre-dispute arbitration agreements requiring employees to arbitrate claims arising under Title VII or tort claims related to sexual harassment or assault.
Since the #MeToo movement started, state legislators have further restricted the use of arbitration agreements related to sexual harassment claims. Maryland passed a bill that makes mandatory arbitration agreements related to sexual harassment or certain retaliation null and void. Likewise, New York State has also passed a bill impacting arbitration agreements. It provides that, “except where inconsistent with federal law,” employers are prohibited from including, in any contracts with employees, provisions that mandate arbitration for allegations or claims of sexual harassment. The law also declares null and void clauses in existing contracts that mandate arbitration of sexual harassment claims. Vermont prohibits employment agreements from containing provisions that waive an employee's rights or remedies with respect to a claim of sexual harassment. The effect of these laws is that employees with sexual harassment claims in those states can no longer be required to bring such claims in a private arbitration forum.
On the other hand, as we previously reported, California’s governor recently vetoed a similar ban on arbitration agreements, based on concerns that it would violate the Federal Arbitration Act.
This first year since the dawn of the #MeToo movement has demonstrated that many state and local legislatures have taken the lead in using the law to address issues involving sexual harassment in the workplace. Employers should keep an eye on developing legislation, and consult with employment attorneys to help guide them through this constantly-evolving landscape. With November elections approaching and dissatisfaction with current public officials at an all-time high, proposals for new #MeToo legislation may be just around the corner.