Update: A few days after this post, the General Assembly failed to give final approval to this measure, leaving it to die at the end of the legislative session on May 9, 2018.
Early Friday morning, the state Senate approved a bill that would significant broaden the sexual harassment prevention training requirements and many other provisions in discrimination law. A similar (but notably different) bill passed the House; now, this Senate bill on the House calendar for this week.
It’s not a done deal just yet, but here are the key provisions of Senate Bill 132 (as amended) as it seems probable this bill is close to final passage. Thanks to the OLR for summarizing the key aspects of the bill of which I’ve borrowed heavily from.
- The bill would change the training requirements for sexual harassment prevention.
- It would require training for supervisory employees of all employers, regardless of size
- For nonsupervisory employees of employers with 20 or more employees, it would also require training.
- Overall, the training would need to take place by October 1, 2019 with some additional tweaks specified in the bill.
- The bill requires CHRO to develop and make available to employers an online training and education video or other interactive method of training and education that fulfills the bill’s training requirements.
- Under the bill, employers who are required to provide such training must, at least every ten years, provide supplemental training to update employees on the content of the training and education.
INFORMATION AND POSTING
- Currently, employers must post a notice that (1) that sexual harassment is illegal and (2) of the remedies available to victims. Under the bill, this information must be sent to employees by email, within three months of hire, if the (1) employer has provided an email account to the employee or (2) employee has provided the employer with an email address. The email’s subject line must include “Sexual Harassment Policy” or something similar.
- If an employer has not provided email accounts to employees, it must post the information on its website, if it has one. The bill is not clear whether this is the company’s internal website or external-facing one.
- The bill also has more work for the CHRO and requires the agency to develop and include on its website a link about the illegality of sexual harassment and the remedies available to victims. An employer can comply the information requirements this link to employees by email, text message, or in writing.
- Employers to a fine of up to $1,000 if they fail to provide the training and education as required.
NEW “DISCRIMINATORY PRACTICE” DEFINITION CHANGE
- Employers have long been told to “read the definitions” of the CHRO statute to understand requirements. This bill expands the definition of “discriminatory practice” to include violations of the following requirements for:
- employers, employment agencies, or labor organizations, or complaint respondents or other people subject to the public accommodations or housing discrimination laws, to post notices describing any laws as CHRO directs;
- employers to provide training and information to employees (as specified above) about sexual harassment and available remedies; and
- state agencies to provide diversity training and education to employees, annually report on such training, and submit information demonstrating compliance as part of their affirmative action plans.
- Why does this matter? Because by expanding the definition of “discriminatory practice”, then current or former employees (or even the CHRO itself) can file a complaint with CHRO alleging such discrimination.
IMMEDIATE CORRECTIVE ACTION
- Another substantive change from current law is that the the bill would statutorily prohibit an employer, when taking immediate corrective action in response to an employee’s claim of sexual harassment, from modifying the claimant employee’s conditions of employment unless he or she agrees, in writing, to the modification.
- This includes actions things like:
- relocating the claimant,
- assigning the claimant him to a different work schedule, or
- making other substantive changes to the terms and conditions of employment.
- The bill also prohibits employers from taking or threatening to take any personnel action against any employee in retaliation for the employee filing a complaint alleging that an employer has committed a discriminatory practice.
NEW DEADLINES FOR FILING CHRO COMPLAINTS AND RELATED LAWSUIT
- Currently, discrimination complaints must be filing within 180 days of the alleged violation of law. The bill makes a big change to that deadline and extends, to one year, the time for filing employment-related complaints alleging discrimination or harassment for action that allegedly occurred on or after October 1, 2018.
- Currently, any complaints that have received a “release of jurisdiction” from the CHRO may bring a lawsuit within 90 days after receiving the release (and two years after filing the CHRO complaint). For employment discrimination occurring on or after October 1, 2018, the bill would allow the individuals to file a lawsuit up to one year after the release (even if it was not filed within 2 years of the CHRO complaint).
- The bill sets a deadline of 180 days after release from CHRO jurisdiction if the complaint was dismissed for failure to accept full relief and the complainant did not request reconsideration.
ATTORNEYS FEES AT CHRO HEARING
- The bill would require CHRO Hearing Officers to determine the amount of damages, including the complainant’s actual costs as a result of the discrimination AND allow reasonable attorney’s fees and costs. The amount of damages requested by or awarded to the complainant should not, according to the bill, be a factor in the determination.
DEDUCTIONS FOR WHITE COLLAR EXEMPTION WORKERS
- Under current law, employers couldn’t necessarily suspend a white collar exempt employee for pay for a day or two without losing the exemption. The bill allows employers to deduct the pay of certain executive, administrative, or professional employees for periods during which they were suspended from work for violating written workplace rules that prohibit harassment or workplace violence.
- These provisions apply to private sector employers as well as the state and local government employers and individuals employed in a bona fide executive, administrative, or professional capacity as defined by the FLSA and its regulations.
SCHOOL ADMINISTRATOR SUSPENSIONS
- No doubt my colleagues who run the “School Law Blog” will have a field day with this one but under the bill if a school employee files a sexual harassment complaint against an administrator, the school superintendent must immediately suspend the administrator and conduct an investigation of the allegations.
- The bill defines “complaint” for this purpose as a written communication alleging that an administrator has committed sexual harassment, and that a school employee files, or someone files on the employee’s behalf, with the superintendent or its designee, the CHRO or a court.
- According to the OLR analysis, “the bill does not (1) specify whether the suspension is with or without pay or (2) establish procedures for such investigations or a timeframe for their completion.
NEW CHRO LAWSUITS IN COURT
- The bill would allow the CHRO to assign CHRO legal counsel to bring a civil action, instead of an administrative hearing, in certain cases when in “the public interest” and the parties agree to it. There are additional details to this as well that we’ll recap in the event this bill becomes law.
The bill contains a number of new provisions that employers and their employment counsel will need to follow. If passed, this bill would greatly expand the training necessary for many employees and many employers.
These changes represent the most significant ones in the area of sexual harassment law in many many years.