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On Wednesday, March 22nd, the Judiciary Committee will be holding a hearing on Senate Bill 3. It is largely a big bill on data privacy.

But the bill also has tucked into it provisions that would require employers that provide references for employees to prospective employers to make certain notifications that claims of sexual harassment have been made.

Let’s start from the place that the legislators have good intentions on the bill; preventing sexual harassment in the workplace is a laudable goal. Full stop.

But the bill’s provisions create a framework for employers that raise a whole host of questions; resolution of those questions may ultimately be a challenge.

The provisions can be found in Section 13 of Senate Bill 3. In relevant part, the bill states:

Notwithstanding the provisions of section 31-128f of the general statutes, if an employer knows that a person is evaluating the candidacy of a current or former employee of the employer, and the employer provides such person with a recommendation or positive commentary relating to the current or former employee’s work performance, such employer has a duty to timely disclose to such person any known act of sexual harassment or sexual assault committed by the employee occurring in the workplace of the employer. For purposes of this section, an employer knows about an act of sexual assault when the individual who provides the recommendation or positive commentary is an employee or agent of the employer and has actual knowledge of such act. For purposes of this section, an employer knows about an act of sexual harassment when the individual who provides the recommendation or positive commentary is the employer, or an employee or agent of the employer and has actual knowledge of such act, and a complaint alleging the sexual harassment was filed with the Commission on Human Rights and Opportunities, the Equal Employment Opportunity Commission or a court of competent jurisdiction. An employer’s duty to timely disclose any known act of sexual harassment or sexual assault shall terminate one year following the date on which the employer, or an employee or agent of the employer, has actual knowledge of an act of sexual harassment or sexual assault committed by an employee. Notwithstanding the provisions of this subsection, a former employer’s duty to timely disclose known acts of sexual harassment or sexual assault under this subsection shall terminate prior to the expiration of such one-year period, if during such period: (1) A criminal prosecution involving the sexual assault (A) is dismissed, (B) results in the entry of a nolle prosequi of the sexual assault charges, or (C) results in the acquittal of the former employee; or (2) in a proceeding before the Commission on Human Rights and Opportunities involving a complaint of sexual harassment, (A) the complainant withdraws the complaint, or (B) said commission enters a finding that there is no reasonable cause for the complaint.

Because the bill is still in the formative stages, I’m not going to do a deep dive yet into the provisions. Rather, I’m going to pose some of the questions I’ve been thinking about (among many others) that should still be answered. I should also note that there are provisions here relating to sexual assault which I think is an entirely separate category that I’m not address for purposes of this post.

  • Who determines what “sexual harassment” is or when that standard has been met? As anyone who has dealt with this understands, the standard for sexual harassment isn’t a “yes” or “no” answer but is based on a set of facts that is typically determined by a fact-finder. Does an employer need to make a determination? When? What if an employee never complains internally? Can they be deemed to “know” if the harassment was done by a supervisor?
  • This seemingly covers quid pro quo sexual harassment as well as hostile work environment claims. When is a job-seeking employee deemed to be the so-called “harasser”? Does a claim of harassment need to be filed against the individual? Is an individual who merely participates in one act of an employer’s creation of a hostile work environment covered?
  • Relatedly, if a CHRO or EEOC complaint is filed against an employer (since there are very few cases filed against individuals), when is that complaint to be viewed as against a particular employee? Is an unverified complaint that merely mentions an employee enough? Is it a supervisor? A co-worker alleged to be part of a “hostile work environment”? Does an employee have to be mentioned by name to be covered?
  • What constitutes “actual knowledge” for an employer? When does the one year period of such knowledge start? From the first so-called act of harassment? The last? Does it restart? Who is making the determination that an employer has “actual knowledge”? Is it an after-the-fact determination? What elements would be required to prove it in court?
  • Is this bill really relying on unfounded allegations at the CHRO or EEOC and creating a duty for employers to disclose when the proceedings at the CHRO are otherwise private? Should the filing of a CHRO claim be the determining factor in creating this duty?
  • Why do CHRO complaints that are dismissed at Case Assessment Review stage not release employers of their obligation to report such claims? What about cases that are otherwise dismissed under Conn. Gen. Stat. 46a-83(m)? Do employers have an obligation to report these types of claims too which are not otherwise “withdrawn” or have a “no reasonable cause” finding? What about first-filed claims at the EEOC?
  • Realistically, given that an employer’s obligation to disclose starts upon its first knowledge and given that CHRO/EEOC complaints may be filed much later (and won’t be resolved quickly), how many cases will this really cover?
  • Will complaints at the CHRO need to be labelled “sexual harassment” to be covered? For example, in 2021-2022, there were only 157 sexual harassment complaints filed at the CHRO. What about “harassment” complaints? And given that there were only 157 complaints filed at the CHRO, should that impact the scope of this bill?
  • What constitutes a “recommendation”? Or a “positive commentary”? If you say that someone showed up to work each day – is that enough? Does this cover one employee talking to another at a cocktail party? Is confirming dates of employment and job title being considered a recommendation? Does this cover employers who give “negative” references?
  • What does it mean to “timely disclose” a known act of sexual harassment to a prospective employer? At the time? One day? One week? How much disclosure is required to satisfy the obligation too? The fact that a complaint was made? The facts of the complaint?
  • What constitutes harassment “in the workplace of the employer”? Is inappropriate texting by an employee to another at 3 a.m. “in the workplace”?
  • Does this cover internal hires? After all, it refers to references given to any “person”.
  • What about employers who ban employees from giving recommendations only to have individuals share comments privately without the company’s authorization? How can an employer protect itself from rogue actors?
  • Does the qualified privilege for job references still apply as originally discussed by the Connecticut in Miron v. University of New Haven Police Department?
  • What protections are there for an employer who makes such a report to a new employer? What prevents the former employee from suing the employer on defamation/slander grounds?

There is another provision in the bill that I haven’t even gotten too which discusses the liability for employers that do not report such harassment — namely that if the new employer relied on the recommendation, the former employer then becomes liable for any acts of sexual harassment and sexual assault seemingly ever committed by the employee. But that provision raises even more questions.

  • For how long is the former employer liable for the acts of former employee? Forever? Is there a statute of limitations?
  • How much disclosure is required by the former employer to satisfy its “duty”?
  • How is the new employer to be “liable”? Is this a separate cause of action? Who can go to court?
  • Should the former employer have an ability to challenge such a finding of sexual harassment at the new employer? What intervening acts, if any, by the new employers should break the chain of liability?
  • How will this law interact with the “negligent hiring” cause of action that exists?

Those supporting this bill might have the best of intentions but the Judiciary Committee should go back to the drawing board to resolve these questions and more. The CBIA has already issued a post criticizing the bill on Friday.

Perhaps one place for the legislature to look for guidance is in the so-called “Pass the Trash” bill passed in 2017 which was intended to make it harder for a school employee to quietly resign amidst allegations of abuse, neglect or sexual misconduct. It has its own detractors to be sure but it was much more narrowly tailored and defined.

At a minimum, the Judiciary Committee should separate out these provisions from the data privacy bill; it’s an entirely separate topic that deserves to rise or fall on it’s own merits. It should also be vetted through the Labor & Public Employee Committee which normally (though not always) has primary jurisdiction over these types of workplace matters.