2021: Movement in the States
“Laws are an important way to create a baseline set of expectations for appropriate behavior, and offer specific remedies in the event sexual harassment occurs.”
NowWhat: The Sexual Harassment Solutions Toolkit (1)
October 2021 marked the four year anniversary of when Tarana Burke’s longstanding #MeToo movement went viral. Over the years the movement has evolved beyond the hashtag with activists and lawmakers alike advocating for strengthened sexual harassment laws and substantive policy change to address harassment in the workplace. The emergence of the COVID-19 pandemic and resulting disruptions to the workforce have underscored the need for robust change. Enacting new laws at the federal level and within state legislatures are just a couple ways lawmakers have demonstrated an awareness of and concern about the pervasive nature of sexual harassment in the workplace.
In the 2021 session, state legislators introduced more than 115 bills targeted at strengthening protections against workplace harassment, and five states enacted new or expanded protections (2). Legislators in states such as New Jersey, Georgia, and Colorado introduced legislation to modernize harassment laws and strengthen protections for workers. Some legislatures, such as in Maryland and Virginia, addressed the language established by federal courts for determining whether conduct constitutes harassment, while other states, like Colorado, added language in their state anti-discrimination laws to clarify that sex-based discrimination includes sexual orientation and gender identity.
These legislative changes to current anti-harassment and discrimination laws constitute a necessary step in ensuring all workers have the workplace protections they need. Yet, this progress remains incomplete and the Purple Campaign will continue to push state lawmakers to enact further reforms in 2022.
WORKPLACE ADVANCEMENTS FROM THE 2021 SESSION
Limiting Use of Nondisclosure Agreements
The #MeToo movement revealed that many employees who came forward to report workplace misconduct signed settlement agreements that included nondisclosure agreements (NDAs). NDAs prohibit employees from speaking about their experiences on the job. NDAs in sexual misconduct settlements are dangerously effective in keeping accusations hidden. On the other hand, confidentiality agreements can sometimes benefit those who have been subjected to sexual harassment, protecting them from unwanted negative attention or even retaliation. Confidentiality can encourage people to come forward, but placing that choice in the hands of the individual who has experienced misconduct – rather than with their employer – can go a long way toward promoting transparency and accountability. Lawmakers at the state and federal government levels have begun to take action to limit the power of nondisclosure agreements in sexual harassment, abuse, and assault cases, while still supporting survivors who may want an assurance of confidentiality.
In October 2021, California Governor Newsom passed the “Silenced No More” Act which expands existing restrictions on the use of NDAs in settlement agreements based on claims of workplace discrimination, harassment, or retaliation (3). Under the new law, NDAs are now prohibited for all alleged claims of workplace harassment, discrimination, or retaliation, including those based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation or veteran or military status (4). However, a provision to protect the identity of the claimant may be included in the settlement agreement at the request of the claimant. The new law takes effect on January 1, 2022.
Nevada also limited employers’ use of NDAs in 2021. Assembly Bill 60, which went into effect in May, voids provisions of a contract or settlement agreement if they restrict one person from testifying against another about a crime, sexual harassment, discrimination or retaliation (5).
Limiting the use of NDAs can go a long way toward restoring worker power and increasing employer transparency and accountability.
Expanding Protected Categories
In June 2020, the Supreme Court issued a decision in Bostock v. Clayton County, in which the Court determined that discrimination on the basis of sexual orientation or gender identity is discrimination “because of sex.” Though the Supreme Court’s landmark decision makes clear that sex discrimination includes sexual orientation and gender identity discrimination, some states have passed their own laws adding sexual orientation, gender identity, and gender expression as protected categories which entitles them to specific workplace protections.
This year, Colorado enacted legislation amending the definition of sexual orientation and adding “gender identity” and “gender expression” as protected classes under numerous state anti-discrimination statutes (6). Prior to this legislation, the classes protected from discrimination under Colorado state law were disability, race, creed, color, religion, sex, sexual orientation, marital status, familial status, national origin and ancestry. On May 20, 2021, Colorado Governor Jared Polis signed into law HB21-1108, known as the Gender Identity Expression Anti-Discrimination Act (the Act), adding gender expression and gender identity as protected categories (7). Given these changes, employers are now prohibited from refusing to hire, discharge, promote or demote, harass, or “discriminate in matters of compensation, terms, conditions or privileges of employment” against an individual based on gender expression, gender identity or sexual orientation (8).
Colorado joins a growing number of states that have extended their antidiscrimination statutes to include prohibitions against gender identity and gender expression discrimination.
Prioritizing Prevention Strategies
Effective anti-harassment training can be an effective strategy for preventing harassment and discrimination in the workplace. While states such as California, Connecticut, Delaware, Illinois, Maine, New York State, and New York City have all passed statutes requiring sexual harassment training for employees, other states in the 2021 session followed suit. Recognizing the importance of anti-harassment training, particularly when tailored to a specific workplace, state lawmakers in Nevada passed legislation requiring the state government to develop a policy requiring training for all state executive employees on sex and gender-based harassment (9).
Implementing robust and transparent anti-harassment policies is another prevention method currently under-utilized in both the private and federal sectors. Anti-harassment policies are currently not required by federal law. As a result, many employers lack anti-harassment policies, particularly organizations without adequate resources to engage experts to develop them. In 2020, seven states enacted measures to require or encourage employer anti-harassment policies (10). In the 2021 session, lawmakers in Nevada went a step further and enacted legislation requiring the state government to develop a policy on sex and gender-based harassment, including a definition of prohibited behavior, training requirements for all state executive employees on sex and gender harassment, training requirements for supervisors, and procedures for filing reports. The legislation also created an internal agency responsible for investigating harassment reports (11).
Ensuring All Workers Are Covered by Harassment Protections
In most states and under federal law, legal protections against harassment extend only to full-time and part-time employees, leaving many people like contractors, fellows, or other non-employees unprotected by federal anti-discrimination laws.
Domestic workers — individuals who typically provide personal and household care — have historically been a group excluded from major legal workplace protections such as Title VII of the Civil Rights Act. As a result of fewer workplace protections and decentralized or non-existent paths for reporting harassment, domestic workers tend to be more at risk for sexual harassment on the job. Virginia enacted legislation specifically designed to protect domestic workers from harassment and other forms of discrimination (12). On February 19, 2021, the General Assembly passed HB 1864, which expands the definition of “employer” in the Virginia Human Rights Act to protect domestic workers from workplace discrimination (13). Specifically, HB 1864 protects domestic workers by prohibiting workplace discrimination based on race, religion, sexual orientation, gender identity, disability, and other factors.
In many states, harassment laws do not cover smaller employers, and federal law does not reach employers with fewer than 15 employees. Since October 2017, states have been working to extend anti-harassment protections to all employers, regardless of size (14).
In May, Texas enacted legislation extending protections against sexual harassment to all employees, regardless of the size of the employer’s business. Previously, Texas sexual harassment law only covered employers with 15 or more employees. The new Texas law is now more stringent than Title VII in that employers of all sizes are now subject to potential liability for sexual harassment (15). The law expands the definition of “employer,” for purposes of sexual harassment only, to include a person who: (i) employs one or more employees; or (ii) acts directly in the interests of an employer in relation to an employee (16). This definition is broader than the definition of “employer” articulated under Title VII.
MOVING FORWARD
While real progress has been made in advancing workplace harassment reforms in the states, there is more work to be done to strengthen and expand anti-harassment laws. In 2022, the Purple Campaign will continue to urge state lawmakers to continue the progress that has been made, and focus on tackling remaining barriers to safe and equitable workplaces. Specifically, state lawmakers should draft and pass legislation addressing the following issues, among others:
Protecting Those Who Speak up from Defamation Suits:
When survivors of workplace harassment speak up, they often face retaliation. Defamation lawsuits have been weaponized by perpetrators as a tactic to silence survivors and harm their reputations. To combat this, the state of Washington enacted the Uniform Public Expression Protection Act (UPEPA) to protect individuals from meritless defamation lawsuits. The UPEPA reinstated protections in the state to protect individuals who are “slapped” with a meritless defamation lawsuit seeking to silence their exercise of free speech and petition rights (17).
Extending Statutes of Limitations:
Statutes of limitations (SoLs) limit the amount of time an individual has to initiate a lawsuit after an incident. SoLs differ from state to state, and even within the same state timeframes may vary for different types of cases. Short statutes of limitations can hamper the ability of individuals to bring harassment complaints forward. In the 2021 session, Texas enacted legislation to extend the statute of limitations for filing workplace sexual harassment complaints with the Texas Workforce Commission from 180 days to 300 days after the alleged sexual harassment occurred (18).
Strengthening Workplace Harassment Laws:
In October 2021, New Jersey introduced S.3352. If passed, it would become one of the strongest workplace harassment laws in the country. Among other things, the bill requires employers to conduct interactive workplace anti-discrimination and anti-harassment trainings 90 days after hire and every two years; requires employers to have workplace policies on discrimination and harassment; replaces the harmful severe or pervasive standard; and extends anti-discrimination protections to interns, independent contractors, and domestic workers (19).
The Purple Campaign is eager to continue advocating for better laws at the state level that address workplace harassment. To learn more about the Purple Campaign’s advocacy work in the states, click the button below.
“NowWhat: The Sexual Harassment Solutions Toolkit,” New America, https://www.newamerica.org/better-life-lab/reports/nowwhat-sexual-harassment-solutions-toolkit/legal-reforms/.
A. Johnson, S. Ijoma, & K. Wiese, “2021 Progress Update: #MeToo Workplace Reforms in the States,” National Women’s Law Center, (Oct. 2021), https://nwlc.org/wp-content/uploads/2021/10/v2_2021_nwlcMeToo_Report-10.15.21.pdf.
“Governor Newsom Signs Senator Levya’s ‘Silenced No More Act,’’ Senator Connie M. Levya Press Releases, (Oct. 2021), https://sd20.senate.ca.gov/news/2021-10-07-governor-newsom-signs-senator-leyva%E2%80%99s-%E2%80%9Csilenced-no-more-act%E2%80%9D.
“Settlement and Nondisparagement Agreements,” S.B. 331, Chapter 638, (Oct. 2021).
A.B. 60, 81st Leg. (Nv. 2021).
A. Johnson, S. Ijoma, & K. Wiese, “2021 Progress Update: #MeToo Workplace Reforms in the States,” National Women’s Law Center, (Oct. 2021), https://nwlc.org/wp-content/uploads/2021/10/v2_2021_nwlcMeToo_Report-10.15.21.pdf.
“Gender Identity Expression Anti-Discrimination,” Colorado General Assembly, (2021), https://leg.colorado.gov/bills/hb21-1108.
J. Bruner, N. Schacht, & M. Uren, “Colorado Joins Coalition of States Expanding Antidiscrimination Laws to Include Protections for Gender Identity and Gender Expression,” JD Supra, (June 2021), https://www.jdsupra.com/legalnews/colorado-joins-coalition-of-states-4560487/.
A. Johnson, S. Ijoma, & K. Wiese, “2021 Progress Update: #MeToo Workplace Reforms in the States,” National Women’s Law Center, (Oct. 2021), https://nwlc.org/wp-content/uploads/2021/10/v2_2021_nwlcMeToo_Report-10.15.21.pdf.
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A. Johnson, S. Ijoma, & K. Wiese, “2021 Progress Update: #MeToo Workplace Reforms in the States,” National Women’s Law Center, (Oct. 2021), https://nwlc.org/wp-content/uploads/2021/10/v2_2021_nwlcMeToo_Report-10.15.21.pdf.
“Domestic Workers Bill of Rights Passes General Assembly, Headed to Governor’s Desk,” Jennifer McClellan Press Releases, (Feb. 2021), https://www.jennifermcclellan.com/domestic-workers-bill-of-rights-passes-general-assembly-headed-to-governors-desk/.
A. Johnson, S. Ijoma, & K. Wiese, “2021 Progress Update: #MeToo Workplace Reforms in the States,” National Women’s Law Center, (Oct. 2021), https://nwlc.org/wp-content/uploads/2021/10/v2_2021_nwlcMeToo_Report-10.15.21.pdf.
J. Bush, N. Delaune, B. Jorgensen, “New Texas Law Expands Potential Liability for Sexual Harassment,” JD Supra, (Sept. 2021), https://www.jdsupra.com/legalnews/new-texas-law-expands-potential-6687027/.
Tex. Lab. Code § 21.141.
Jay Adkisson, “Washington State Legislature Passes the Uniform Public Expression Protection Act,” Forbes, (Apr. 2021), https://www.forbes.com/sites/jayadkisson/2021/04/30/washington-state-legislature-passes-the-uniform-public-expression-protection-act/?sh=1c065ec8fe96.
A. Johnson, S. Ijoma, & K. Wiese, “2021 Progress Update: #MeToo Workplace Reforms in the States,” National Women’s Law Center, (Oct. 2021), https://nwlc.org/wp-content/uploads/2021/10/v2_2021_nwlcMeToo_Report-10.15.21.pdf.
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