Earlier this week, the Judiciary Committee (by a 25-16 vote) approved of Senate Bill 132, being labelled by it’s proponents as the “Time’s Up” bill but covers both harassment and discrimination cases. I covered an announcement of this a while back.  

As the bill moves closer to consideration now to the state Senate, it’s time for employers to start paying attention to what’s in the bill.  The CBIA has expressed concerns about some aspects of the bill.

Here are a few highlights:

  • To require employers to provide every employee with information concerning the “illegality of sexual harassment and remedies available to victimes of sexual harassment”.
  • To require employers of three or more employees (currently set at 50) to provide two hours of sexual harassment prevention training and with such training being provided not just to supervisory employees, but all employees.
  • To eliminate affirmative defenses that employers otherwise have that: “(i) the claim of sexual harassment was properly investigated, immediate corrective action was taken and no act of sexual harassment subsequently occurred, (ii) the claim of sexual harassment was not reported to a respondent prior to the filing of a complaint with the commission, (iii) an employer has a policy of prohibiting sexual harassment or recently trained its employees on sexual harassment in accordance with subdivision (15) of section 46a-54, as amended by this act, or (iv) the sexual harassment was not severe or pervasive.”  These defenses would only be allowed to be introduced on the question of damages.
  • To prohibit employers from modifying the “conditions of employment” of the employee making the claim of sexual harassment when the employer takes “immediate corrective action”, unless employee agrees in writing to such a modification.
  • To allow the CHRO to order the promotion of an employee in response to a claim of discrimination.
  • To allow claims of discrimination that occur on or after October 1, 2018 to be subject to a new three-year statute of limitation, instead of the current 180 day requirement.
  • To allow punitive damages for discrimination claims to be awarded in some instances.
  • To allow lawsuits to be brought two years after the CHRO releases jurisdiction over a discrimination, instead of the 90 day requirement.

There’s more as well, so employers are best advised to review it and talk with their attorneys about the impact that this bill might have on their workplace.

From a procedural perspective, the change in the statute of limitations would be significant.

Take this example: Suppose an alleged discriminatory act took place on May 15, 2019.  An employee would then have until (approximately) May 15, 2022 to bring a CHRO charge.  The CHRO could investigate the claim for a while — say a year and release jurisdiction on May 15, 2023.  The employee could then have two additional years to bring suit in Court — taking it out to May 15, 2025.  Add another 18-24 months before a trial date, at best.

Ultimately, this could result in a claim being heard nearly eight years (or more!) after the alleged discrimination took place.

Supervisors may have long since left the company and evidence might not be available anymore for employers to defend themselves.  All told, these types of delays were exactly the type of issue that a shorter statute of limitations was designed to prevent.  Companies would be at a significant disadvantage in defending themselves, all the while damages continue to accrue.

This bill would also require the CHRO to renegotiate significantly large portions of the worksharing agreement in place with the EEOC.

There is certainly momentum for some type of action here; stay tuned to see what further modifications are made to this bill.

Last week, I posted about a proposed Governor’s bill that would expand the training requirements for some employers.

However, that appears to be just a small part of a wider political battle that is about to be raised.

Yesterday, a group of Senate Democrats proposed, according to a handout, the “Largest Overhaul in Modern Connecticut History of Sexual Harassment Laws” that would significantly alter the landscape for nearly all Connecticut employers.

They’ve titled their proposal the “Time’s Up Act: Combating Sexual Harassment and Sexual Assault”.  

The bill has yet to be drafted, but the outlines are being shared by Senate Democrats and will be pursued first in the Judiciary Committee (not the Labor & Public Employee Committee as you might expect).

According to their handout, the proposed bill will contain the following relating to discrimination or harassment laws:

  • Require that any notice of sexual harassment remedies and policies by e-mailed to each employee at least once a year, in addition to the required posting.
  • Increase the fines that the CHRO can impose for failing to provide notice (currently at $250)
  • Require sexual harassment training to all employers with three or more employees (instead of the current 50 or more threshold)
  • Require training of all employees, not just supervisory employees with broader topics
  • “Give CHRO the resources it needs to go out into the community and conduct on-site trainings”
  • Increase the statute of limitations from 180 days to 2 years for not just harassment complaints, but all discrimination complaints
  • Eliminate the 90 day deadline after receiving a release from the CHRO to file a lawsuit but extend it to two years after a release from the CHRO.
  • Permit the CHRO to ask for injunctive relief for employers of 3 or more employees, not the current threshold of 50.
  • Allow for punitive damages in all discrimination and harassment complaints
  • Increase funding for the CHRO
  • Create a similar model to California in passing a Private Attorney General Act, which would allow litigants to, after giving notice to the CHRO, bring a claim for violations against himself or herself, but also against other employees as well.
  • Prohibit settlement agreements that prohibit a party from disclosing information regarding sexual harassment or sexual assault.

This is still in the early stages but expect to see a lot more about this in the weeks and months to come.  No doubt, the Connecticut Business and Industry Association will have something to say about this as well.

I’ll have more details as they become available.

In trying to eliminate sexual harassment in the workplace, how do we go beyond just training?

That is, in essence, the question that my colleagues (Jarad Lucan and Ashley Marshall) and I have been talking about recently.

And, fortunately for you, a topic of a free CLE webinar we are putting on a few weeks.  It’s set for February 13th at 12 p.m.

What we are really looking at is how do you get your company culture and actions in line to try to reduce and eradicate sexual harassment from your workplace?

It does not, obviously, happen overnight.  Perhaps it’s revising your policies. Perhaps it’s adding an ombudsman program if you’re large enough.

Or perhaps it involves encouragement of employee complaints so that you can tackle the issue more directly.

There is no one size fits all to this but it’s an important enough topic (naturally) that we wanted to devote a CLE webinar just to this.

Hope you can join us for this timely topic.

In college, I wanted to write for some of the major newspapers and be on their front page.

Little did I know that my big break would now come years later, as a result of being on the cover of the Hartford Business Journal.  

Wow.

But enough about me.  This blog is about employment law so let’s talk about the article inside the HBJ because it’s definitely worth a read.  

You see, the photo, has little to do with the content.  And the content is what employers should really be paying attention to.

The article is all about the topic of sexual harassment in the workplace, which continues to make headlines each day.

As I noted in the article, we just haven’t seen an increase in lawsuits….yet.

[F]or non-celebrity victims and their employers, the implications are just as dangerous and costly, so prevention is becoming a greater focus for many companies, lawyers say.

“It’s been the topic of conversation,” said Dan Schwartz, an employment lawyer at Hartford law firm Shipman & Goodwin, who has his own blog where he’s been tackling the issue. “It is at a level we haven’t seen in at least 10 to 15 years. There’s always been a steady stream [of inquiries] but we’re getting more calls from clients. It doesn’t mean we’re seeing more legal cases being filed. Lawsuits are a trailing indicator here.”

The article also summarizes things that employers can be doing now, even if there isn’t a sexual harassment complaint made. Update policies. Train managers and supervisors. Continually create an environment where harassment isn’t tolerated.

Each week seemingly brings new issues to the table; employers that can keep their focus on the issue while also maintaining perspective will do well in the long-term to reduce the likelihood of a claim at the workplace.

In years past, I’ve looked at my crystal ball, I’ve read the tea leaves and I’ve even examined my Magic 8-Ball sitting in my office.  (You never know when you need one.)

I’m out of prediction-making tools.

And indeed, since I started doing this, there are now national lawfirms that are offering up their predictions on employment laws. And everyone is pretty much saying the saying thing nationally:

More focus on sexual harassment claims; more on pay equity;  big changes at the NLRB; more on LGBT employment law protections and still more wage/hour lawsuits.

I’ll make it easy: I agree.

But what’s missing is a look at the local perspective for Connecticut employers. So here are some fearless predictions for 2018 applicable to employers in Connecticut.

  1. It’s (still) the economy, stupid. Where’s the recovery? As it turns out, Connecticut’s economy and budget are both in a bit of a mess. Unemployment has crept back up of late and the General Assembly looks to be coming back to deal with a growing budget deficit. Are we in a recession?There’s no end in sight for this mess for 2018; that said, is the federal tax cut going to trigger some activity?I’m guessing not. I think layoffs and more use of independent contractors may carry the day here. And with that, will we see more lawsuits and more charges of discrimination? Let’s check back in a year.
  2. Count on an interesting Connecticut Supreme Court case or two. Each year, the Connecticut Supreme Court releases an employment law decision or two. Some are important to employers; several others are only notable for employment lawyers.This year, there’s one or two cases pending that may be both.  Keep an eye out for MacDermid Inc. v. Leonetti, which was argued in November 2017.  In that case, an employee signed a separation agreement which included a release of a pending workers’ compensation claim for $70,000 or so.  But the employee pursued the workers compensation claim and the Commission (and the Connecticut Supreme Court) found that the agreement didn’t bar the claim. The employer then sought return of the severance and a jury agreed. Now the employee appeals.  My guess: A close call but comparable federal “tender back” rules suggest employee may not need to return the severance for an invalid release. That said, I’m hedging a bit because the case is complicated with lots of briefing so don’t be surprised if a limited exception for the employer here is found.   (I’ll have more on this case in an upcoming post.)And there’s a decision expected in whether religious institutions have immunity from employment discrimination suits under Connecticut law.  Stay tuned.
  3. Less action from the General Assembly than you might think. It’s an election year for Governor. Moreover, the Senate is evenly split.  And if you following polling, the Democrats in the state seem to have some vulnerability.  All that adds up to a legislature that may be less active than you might think.That said, there’s likely to be a discussion about the use of confidentiality provisions in settlements of sexual harassment claims.  And more attacks on the use of non-compete agreements. But like the pregnancy discrimination law that was passed in 2017, expect a compromise that makes any proposal much more palatable to business interests.

So, there you have it.  Three fearless predictions in Connecticut employment law.

In the meantime, I need another cup of coffee this morning. Best wishes for a happy and healthy 2018.

This post is for the employment law nerds out there.

You know who you are.

You pore over the statistics that show a correlation between the unemployment rate and EEOC filings.  (I see you Lawffice Space.)

You rate who the “Worst Employer” is of 2017.  (Can’t wait for the announcement next week, Ohio Employer’s Law Blog.)

You listen to podcasts about employment law. (Yes you, Hostile Work Environment podcast from Marc Alifanz.)

And, if you’re the publisher of this blog, you pore over meeting minutes of the Connecticut Commission of Human Rights and Opportunities.

Someone has to do it.

And in reading the minutes of an August 2017, I saw a references to a new Case Assessment Review process in place since July 1, 2017.

“What was this?”, I thought at the time.  I got excited.

And then in October 2017, in a moment of brilliance extreme employment law nerd-ism, I sent an old-fashioned Freedom of Information request for that procedure.

Then I waited.  And waited.  At least it seemed like I waited.

Actually, it wasn’t long at all. Just a few days, in fact. My thanks to the agency for complying with state law humoring me and responding so promptly.

It arrived in my inbox. All 18 pages worth.

I wish I could tell you that it was groundbreaking.

It wasn’t.  A lot of the details in it are so pedestrian (“Clerical creates a case folder in the S drive”) that it’s only surprising in the level of detail.

There are a few nuggets of data.  It confirms that the Case Assessments are being handled by “Legal” now in a centralized location.

In fact, the cases are assigned to different people for drafts based on the last digit of the case number.  (Rejected slogans: “C’mon Lucky #7!” or “Stay Alive with #5!”)  The Principal Attorney will then review the proposed drafts.

And…I’ve probably lost you already.

See? It really only something for the employment law geeks.

If you are such a person, you can read the document here.  Consider it your Hanukkah present.

You’re welcome.

 

In yesterday’s post, I talked about the basics of what is and is not “sexual harassment”.

Continuing the theme of going back to the basics, employers in the Constitution State have certain posting and training requirements that must be followed.

These requirements are found in the administrative regulations set up by the CHRO regarding sexual harassment prevention.

I first detailed these in a post WAY back in October 2007 (!) but they remain just as important today as ten years ago.

For posting: All employers who have 3 or more employees must provide notices that say sexual harassment is illegal and address what the remedies are for such harassment.

But here’s a free shortcut: The CHRO has prepared a model poster that complies with the statute and is free to download.  You can do so here. 

It’s a good time to remind employers too that employers should also update their “Discrimination is Illegal” poster also offered by the CHRO.  The poster was updated in October and again, is free to download here.  

For training: The training requirements only apply to employers who have 50 or more employees and apply only to supervisory employees.

Of course, this does not mean that employers who have less than 50 should NOT provide the training; indeed, offering the training can assist with a defense of a potential sexual harassment training.

Specifically, within 6 months of a new supervisor being hired or an employee being promoted to a supervisory position, the employee must receive at least two hours of training.

The format of the training should be conducted in a classroom-like setting, using clear and understandable language and in a format that allows participants to ask questions and receive answers.

The CHRO has indicated, in an informal opinion, that some e-learning training may satisfy this requirement.  Regardless, the training must also include discussion of six discrete topics such as what the state and federal laws say, what types of conduct could be considered sexual harassment, and discussing strategies for preventing such harassment.

Those topics are:

  • (A) Describing all federal and state statutory provisions prohibiting sexual harassment in the work place with which the employer is required to comply, including, but not limited to, the Connecticut discriminatory employment practices statute (section 46a-60 of the Connecticut General Statutes) and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. section 2000e, and following sections)
  • (B) Defining sexual harassment as explicitly set forth in subdivision (8) of subsection (a) of section 46a-60 of the Connecticut General Statutes and as distinguished from other forms of illegal harassment prohibited by subsection (a) of section 46a-60 of the Connecticut General Statutes and section 3 of Public Act 91-58;
  • (C) Discussing the types of conduct that may constitute sexual harassment under the law, including the fact that the harasser or the victim of harassment may be either a man or a woman and that harassment can occur involving persons of the same or opposite sex;
  • (D) Describing the remedies available in sexual harassment cases, including, but not limited to, cease and desist orders; hiring, promotion or reinstatement; compensatory damages and back pay;
  • (E) Advising employees that individuals who commit acts of sexual harassment may be subject to both civil and criminal penalties; and
  • (F) Discussing strategies to prevent sexual harassment in the work place.

Here the kicker: The regulations suggest (but do not mandate) that such training be updated for ALL supervisory employees every three years.

What does this mean? It means that if an employer wants to project an image that it has a strong policy against sexual harassment, it should consider following this advisory regulation to show that it is doing above and beyond what is required.

The regulations also suggest (but do not mandate) that records be kept of the training.

Again, it is a wise course of action to follow.

If you haven’t taken a look at your posting and training materials at your company, now is a good time to do so.

With all the focus on sexual harassment in the news lately, one thing missing from most of the coverage is an actual explanation of what is (and is not) “sexual harassment”.  At least according to the law.

Sounds simple right?

Except that it’s not because the prevailing view of sex harassment differs from that found in the law.

But I will try in a few short paragraphs to sum up decades of sexual harassment law.  (Obviously, I can’t but humor me.)

Though the first thing you should know — the federal law on the subject actually doesn’t use the word harassment!

Robin Shea pointed this out a while back in a blog post and I thought it was a good reminder to start with.  It’s a definition built from U.S. Supreme Court cases.

There are two overall types of sex harassment that the courts have determined.

  1. Quid Pro Quo.  Sound smart: Basically this for that.  It’s a demand (express or implied) for sexual favors for either employment benefit (promotion etc.) or to avoid a negative employment action (firing etc.).  Important to this notion is the element of power — that is a supervisor over someone else.
  2. Hostile Work Environment.  The courts have defined this as harassment that is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'” In determining whether unwelcome sexual conduct rises to the level of a “hostile environment” in violation of Title VII, the central inquiry is whether the conduct “unreasonably interfer[es] with an individual’s work performance” or creates “an intimidating, hostile, or offensive working environment.” 29 C.F.R. § 1604.11(a)(3).Thus, sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.

    Note the “severe OR pervasive”.  One isolated but severe action can be enough; similarly, smaller actions can be enough if it is rampant throughout a department or company.

But not all sexual conduct in the workplace is illegal.  As the EEOC notes in policy guidance:

Sexual harassment is “unwelcome . . . verbal or physical conduct of a sexual nature . . . .” 29 C.F.R. § 1604.11(a). Because sexual attraction may often play a role in the day-to-day social exchange between employees, “the distinction between invited, uninvited-but-welcome, offensive- but-tolerated, and flatly rejected” sexual advances may well be difficult to discern.  But this distinction is essential because sexual conduct becomes unlawful only when it is unwelcome. The Eleventh Circuit provided a general definition of “unwelcome conduct” in Henson v. City of Dundee, 682 F.2d at 903: the challenged conduct must be unwelcome “in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.”

This notion of welcomeness is critical to any determination of sexual harassment in the workplace.

There’s far more to sexual harassment than a mere blog post can provide.  But before we throw around uses of the word in a workplace context, it’s important to understand the legal basis as well.  Some of what has been discussed is far beyond sexual harassment; it’s sexual assault.

On the flip side, an single off-color joke isn’t going to rise to the level of sexual harassment.

And note that the use of the phrase “hostile work environment” is tied to a sexual conduct not a boss who is difficult to work with. . As a state court said in another sexual harassment case recently, “[a]n unfortunate fact of life is that the modern workplace is sometimes a rough and tumble environment, where pettiness, inconsideration and discourtesy reign. . . .”

Connecticut typically follows federal law on the subject but has its own rules too.   For more on the subject, you can see some of my prior blog posts here and here.

Sexual harassment needs to be vanquished from the workplace; understanding exactly what it is (and is not) will help employers spot it and stop it.

Recently, I had the opportunity to see Rags, a new revival now running at the classic Goodspeed Opera House.

I don’t often do theater reviews on this site, but I give it a thumbs up.

The musical tells the story of Jewish immigrants coming to the Lower East Side just after the turn of the century.

They experience outright discrimination and difficult working conditions.

So much so, that they end up even participating in a labor strike asking for better working conditions.

Of course, as an employment lawyer, I’m always looking for a good story to relate.

The musical obviously has undertones of today’s political environment, where refugees are facing barriers to entry from certain countries.

Workplace laws actually limit what employers should be asking in the interview process about immigration status.  And even when a Form I-9 is being process, an employer cannot reject valid documents or insist on additional documentation too.

And it can’t target certain people either.

The EEOC recaps it here:

For example, an employer cannot require only those who the employer perceives as “foreign” to produce specific documents, such as Permanent Resident (“green”) cards or Employment Authorization Documents. Employees are allowed to choose which documents to show for employment eligibility verification from the Form I-9 Lists of Acceptable Documents. Employers should accept any unexpired document from the Lists of Acceptable Documents so long as the document appears reasonably genuine on its face and relates to the employee.

Federal law also prohibits employers from conducting the Form I-9 and E-Verify processes before the employee has accepted an offer of employment.

According to the EEOC, “applicants may be informed of these requirements in the pre-employment setting by adding the following statement on the employment application”:

In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification form upon hire.”

I’ve always been a fan of learning from history. With a musical like Rags, you can get many employment law lessons in one.

Probably not the endorsement you will see from other theater critics, but you work with what you have.

With a new wave of sex harassment complaints making headlines, there is also a bit of reflection that should happen at workplaces and the lawfirms that counsel them.

One area that we can evaluate is whether the training that is provided is effective.

A report yesterday from NPR concluded that training is just not working at many workplaces. 

The primary reason most harassment training fails is that both managers and workers regard it as a pro forma exercise aimed at limiting the employer’s legal liability.

For those of us who have been paying attention, this isn’t new.  I know that for the trainings I give, I try to have them be engaging with discussions of different fact scenarios being discussed.

But I’ve wondered whether we could be doing more.

Indeed, the EEOC issued a report last year highlighting the problems with existing training programs.

In its executive summary, it noted two big issues with the current model of training:

  • Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer’s most valuable resource in preventing and stopping harassment.
  • New and Different Approaches to Training Should Be Explored. We heard of several new models of training that may show promise for harassment training. “Bystander intervention training” – increasingly used to combat sexual violence on school campuses – empowers co-workers and gives them the tools to intervene when they witness harassing behavior, and may show promise for harassment prevention. Workplace “civility training” that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally, likewise may offer solutions.”

Connecticut requires harassment training; I’ve talked about the requirements in some prior posts (check this one out from 2010, for example.)  But employers who have just gone through the motions, aren’t doing enough as we’ve now seen.

As we continue to work to eliminate sexual harassment in the workplace, having an effective policy is only part of the solution.

Making sure the training we provide to employees is helpful is obviously a part as well — and something that may have been overlooked in the past.

But finding that perfect solution to training still seems elusive.