Readers of the blog will no doubt know that it’s been far too long since I had Nina Pirrotti on the blog for a conversation about employment law topics.

Excuses abound, but Nina — who mainly represents individuals in employment-related disputes — recently penned a piece for the Connecticut Law Tribune that is too good to let more time pass.

So, knowing still that titling a piece a “Dialogue” while just offering up a link to her piece is less than ideal, it’s important that we move beyond labels to get at the heart of sexual harassment issues remaining in the workplace.

Nina suggests that there are still far too many employers that have chosen to “bury their heads in the sand rather than confront the harassers who line their pockets.”

You can disagree about the scope of the issue but the underlying premise is sound — sexual harassment remains a scourge of the workplace for too many.

What are some of her tips for employers?

  • Conduct Live Trainings
  • Investigate Responsibly
  • Reject the “He Said/She Said” Cop-Out
  • Incentive the Bystander to Come Forward
  • Support the Survivor

There can and should be those who might suggest other paths for employers to follow.

I might suggest that Boards of Directors require their CEOs to provide quarterly reports on what the company is doing to combat sexual harassment, for example.

But having this discussion makes sure that companies continue to focus on combating sexual harassment in the workplace.  That way, as Nina says, we can turn #metoo into #allofus.

 

From time to time, I take a look back at a prior post that may have particular relevance now. With Halloween knocking on our doorstep and sexual harassment claims on the rise, this post from 2010 has just as much meaning today.

For most people, Halloween is a fun and silly holiday.

Yet the holiday has a distinct place in employment law history.  Indeed, for some employers, the holiday has brought more tricks than treats.

  • In Marrero v. Goya of Puerto Rico, 304 F.3d 7 (1st Cir. 2002), a supervisor was alleged to have gone out to buy Halloween presents. Allegedly, he gave the employee “a direct penetrating look with lust,” and said: “I have a little present for you that you’re never going to forget and if you don’t do the things I tell you and order you to do I am going to fire you.”
  • In Grubka v. Department of Treasury, 858 F.2d 1570 (Fed. Cir. 1988), a supervisor appealed his demotion for engaging in alleged acts of misconduct in kissing and embracing two female employees at a Halloween party organized and staged by the employees at a hotel after hours away from their workplace and for their entertainment.  While he prevailed, i’m not quite sure its the type of activity one would put on a resume.
  • In Lester v. Natsios, 290 F. Supp. 2d 11 (D. D.C. 2003), an employee claimed racial harassment after a costume incident that is probably best left to the court’s analysis: “The …incident is best described as silly, although perhaps also somewhat offensive. It involved a supervisor who dressed up for a Halloween party in a costume as a plant, and then snipped scissors at plaintiff in a conference room.” Um, ok.
  • In Richardson v. New York State Dept. of Corr. Ser., 180 F. 3d 426(2d Cir. 1999), an employee claimed that at Halloween, a co-worker said to the plaintiff something to the effect that “all you spooks have a nice Halloween.” According to the court, the Plaintiff “perceived that the word “spooks” was used as a derogatory term for Black people, and recalled that her co-workers all turned to look at her when the remark was made.” The Court ultimately allowed some hostile work environment claims to proceed, though other references to “lynchings” probably had something to do with it too.
  • Then of course, there’s the supervisor who was alleged to have had a frank discussion of what he was going to wear for Halloween. In Caouette v. OfficeMax, Inc., 352 F. Supp. 2d 134 (D. N.H. 2005), a female cashier, alleged that the supervisor “responded to a question about his stated intention to dress as a woman for Halloween by saying that he was a hermaphrodite who menstruated and used to wear a bra.”  The court upheld his termination.

So, as your employees dress up and act silly, keep on the lookout for employees who cross the line.

As these cases show, Halloween is no excuse for harassment.

As part of my continuing series of posts about the CHRO, and following up from the 75th Anniversary panel discussion earlier this week, I wanted to provide an early look of the statistics that are soon to be released by the agency.

I was provided a preliminary draft in preparation for the panel presentation; it should be out in the next week or two and I was asked not to divulge the specific numbers.  Stay tuned for my deep dive into the numbers when they are officially released. (As a refresher, you can see last year’s numbers here.)

But there are few trends that are readily apparent from the draft.

First, as we have all suspected, sexual harassment claims filed with the CHRO are up substantially over the prior year.  This is not too surprising given the publicity regarding the #metoo movement.  Still, we haven’t seen these types of numbers in nearly 15 years.  When the final numbers are released, expect a big increase in sexual harassment claims from FY ’17 to FY ’18.

Second, we continue to see an increase in the numbers of employment discrimination claims being filed at the state agency.   While it is tempting to draw conclusions from this, the numbers seem to correlate closely to the increase in sexual harassment claims.  Normally, in an improving economy, we see decreases in the numbers of claims filed. We haven’t and that should raise some concerns for employers.

Third, the numbers of cases withdrawn “with settlement” are down substantially.  It’s hard to know what to make of this. With more cases getting dismissed by the agency, it could just be that some of the “nuisance” value cases are getting handled that way, but the drop seems to be much more than that. When the final report is released, it’ll be worth taking a deeper dive into the numbers.

Despite all of the numbers, the numbers of cases certified to public hearing and the number of reasonable cause drafts issues has remained constant from year to year.  This may be the result of the consistent approach that the CHRO has been seeking to implement over the last few years.

The biggest takeaway for employers? Discrimination and harassment complaints are likely at the second highest total they’ve been at in the last decade.

The age of increased discrimination and harassment claims isn’t over; it’s happening right now.

Last year I talked about how the new era of sexual harassment claims was coming.  The open question was: Would the number of claims actually increase?

The answer to that is now known: Yes.

The Equal Employment Opportunity Commission released its preliminary data regarding workplace harassment today. And it’s findings shouldn’t be a surprise if you’ve been paying attention.

Among the notable pieces of data:

  • Charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from FY 2017.
  • The EEOC recovered nearly $70M for victims of sexual harassment through administrative enforcement and litigation, up from $47.5M in FY2017.
  • Reasonable cause findings in harassment claims increased to nearly 1200, up from 900 in FY 2017.
  • And public interest is skyrocketing: The EEOC’s website traffic to its sexual harassment page more than doubled in the last year.

In Connecticut, the Commission on Human Rights and Opportunities hasn’t yet released their statistics on their website.  In years past, it’s been released in the fall — so stay tuned for that. But I anticipate hearing much more from the CHRO this month.

The CHRO is celebrating its 75th anniversary with a whole host of programs including one on Overcoming Barriers in Employment (I’ll be speaking at that one — details soon) and a #MeToo and LGBT Panel Discussion as well.

Interest in sexual harassment cases and actual cases show no sign of slowing down.  If anything, I would argue that public consciousness and awareness of these issues are nearing all-time highs.

Employers should continue to review their policies and procedures in this area and take another look at the training they are providing.

Last night, I had the honor of being elected as Chair of the James W. Cooper Fellows Program of the Connecticut Bar Foundation, after serving for a year as Vice-Chair and Chairperson of the Fellows Education & Program Committee.

The Fellows are comprised of outstanding Connecticut lawyers, judges, and teachers of law; the Fellows put on a variety of programs during the year including symposia, roundtable discussions and mentoring programs for high school students.

At the annual dinner, I sat next to and talked with the Keynote Speaker for the evening, Teresa Younger, who is currently President & CEO of the Ms. Foundation — the Foundation started by icon Gloria Steinem.

Those of you with memories here in Connecticut may remember that she was Executive Director of the Permanent Commission on the Status of Women and Executive Director of the CT Chapter of the ACLU, before leaving to go to the Ms. Foundation.

I’ve met her several times — each time, I’m left with just awe at her accomplishments and, more importantly, by her wisdom and insights.

During her prepared remarks, Ms. Younger had a lot to say about the #metoo and #timesup movements in ways that I think many employers can take notice of.

Among them was her reminder to all of us that the movement isn’t just about stopping harassment in the workplace.

Rather, it’s designed to listen to voices that haven’t yet had the seat at the table, or who have been too timid to speak up thus far.

She highlighted a ABC News report and conversation recently about the shifting views in the workplace and that even among women, there are differences based on age.

As one of the participants in that ABC News conversation said:

From this conversation, I recognized that not everyone feels comfortable and assured in their position to speak up and voice concerns when they experience inappropriate behavior that makes them feel uncomfortable or unsafe. Recognizing this, I encourage people experiencing any form of what they interpret as inappropriate behavior not to feel intimidated and talk with a colleague or a supervisor whom they trust and ensure that there is support if they decide to take next steps.

The workplace continues to shift and evolve.  It’s up to all of us to be cognizant of this and adjust our expectations and actions accordingly.

My thanks to Ms. Younger for providing a valuable insight at last night’s CBF meeting.

Earlier this week, it seemed that a bill requiring employers to conduct additional training on sexual harassment matters was a no-brainer to pass the General Assembly.

After all, Senate Bill 132 passed 31-5 in the state Senate and in this #metoo environment (not to mention local elections in the fall), the House looked to be a near certainty.

But a lot can happen in a few days, and some of the bill’s more controversial provisions were simply too much for the bill to overcome.

Thus, employers do not yet have to worry about the new training requirements and changes to the state’s anti-discrimination laws.

That said, employers still need to follow existing state law regarding training of supervisors (if applicable) and should still exercise caution in dealing with cases of harassment.

One bill that did receive passage late last night was Senate Bill 175, which I haven’t talked much about.

That bill makes a number of changes to government and quasi-public agencies. (In other words, these aren’t applicable to private employers).

Sections 8 and 501 are the key provisions in employment law and limit the use of non-disparagement and non-disclosure agreements.  According to the OLR report:

  • Beginning October 1, 2018, the bill generally prohibits state and quasi-public agencies from making a payment in excess of $50,000 to a departing employee in order to avoid litigation costs or as part of a non-disparagement agreement. Under the bill, “state agency” means executive branch agencies, boards, councils, commissions, and the constituent units of higher education.
  • For state agencies, the bill allows such a payment if (1) it is made under a settlement agreement that the attorney general enters into on the agency’s behalf or (2) the governor, upon the attorney general’s recommendation, authorized it in order to settle a disputed claim by or against the state.
  • It also specifies that, any settlement or non-disparagement agreement cannot prohibit a state agency employee from making a complaint or providing information in accordance with the whistleblower or false claims act.
  • Similarly, any settlement or non-disparagement agreement cannot prohibit a quasi-public agency employee from making a complaint or providing information under the whistleblower law.

For readers who work for the government, these particular provisions — namely seeking approval from the AG’s office — should be reviewed over the next few months.

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.

TRAINING

  • 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.

Continue Reading Revised Sexual Harassment Training Bill (And So Much More) Close To Final Passage

It happened again, last week.  An employer was sued.

Wait, what’s that? A new lawsuit gets filed EVERY day against employers?  (Actually, in federal court, at least 11885 employment lawsuits were filed in 2017. Far more than one a day.)

But last week, there were a bunch of headlines – a new sexual harassment lawsuit filed against a major Connecticut employer.

(I’m not going to mention it here for reasons that will become apparent in a second).

News organizations ate the new lawsuit up picking up scurrilous allegations that were even denied by some of the people involved.

This, of course, isn’t the first time that this happened — that is, news organizations publishing the fact that a lawsuit was filed.

Why? Is it really news?

Reporters would say yes, the public has a right to know.  And in fairness to them, a new lawsuit may have some newsworthiness.

But I’d argue that many reports about lawsuits get published for far simpler reasons — they’re easy to write about.  The facts are laid out in a complaint; all that’s really needed is a few quotes and a response from the employers and the story writes itself.

Typically, the news stories aren’t even written on the fly; a lawyer may “tip off” the reporter that the lawsuit is coming and offer “exclusive” interview to the reporter that coincides with the lawsuit.

At that point, the employer is left to say that it doesn’t comment on pending legal matters or that it’s still “investigating” the claims.

And even when the employer files its motion to dismiss, or answer, or actual responsive pleading, the press has long since moved on.

Employers must recognize this and be prepared to either respond to the press quickly, or figure out your plan ahead of time.

Communications expert Andrea Obston goes one step further and notes that with social media, your company’s story is being told — so you might as well get involved in the conversation.

In today’s on-line world, it’s easy for anyone to tell your story.  Don’t let them.  Tell it yourself.  Tell it authentically and tell it often.  If you don’t, expect someone else to do it for you – whether you like it or not.

Employment lawsuits are easy news. You should understand that by now.   Knowing what to do next may at least position your company as something different than just today’s punching bag.

Employment lawsuits can be more than just legal matters nowadays; the pressure of the online world can be huge. Understanding the stakes now in play are important for employers to understand as they defend against such lawsuits.

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.

The 2018 session of the General Assembly started last week and increasing workplace training is a top priority for passage.

Indeed, it is not surprising that we’re starting to see the first proposed legislation to address the number of harassment claims that have been making headlines the last six months.

Governor’s Bill 5043 sets up the following changes:

  • First, it would increase the number of employers that need to provide anti-harassment training — resetting the number of employees needed to fall under the statute from 50 to 15.
  • Second, the bill would also require all employees (not just supervisors and managers) to undergo two hours of what it calls “awareness and anti-harassment compliance training” and have that training updated every five years.
  • The training that now is just focused on sexual harassment prevention in the workplace, but would also be expanded to include all types of harassment—including that based on race, color, religious creed, age, sex, gender identity or expression, marital status, and national origin.
  • The training would also be required to include information about the employer’s policy against harassment, examples of the types of conduct that constitute and do not constitute harassment, strategies to prevent harassment, bystander intervention training and a discussion of “workplace civility” that shall include what is acceptable and expected behavior in the workplace.
  • The bill would require employers of three or more employees to continue to post information regarding all types of harassment and, on an annual basis, to “directly communicate such information and remedies to employees on an annual basis”.

My best guess is that this item of legislation will go through some additional tweaks to satisfy various constituencies, particularly because of the increased costs involved.

For example, expanding the training to all employees would create a massive new industry for training and, as the CBIA has said, a costly mandate as well.

There is more legislation coming down the pike in the employment law area.  This is just one of the items being floated so stay tuned.