Though the term “sexual harassment” was not officially coined until approximately 1975, Title VII of the 1964 Civil Rights Act, and subsequent laws, have prohibited sexual harassment in the workplace for well over 50 years. Unfortunately, despite such laws given the daily deluge of sexual harassment allegations brought by both men and women, the United States clearly has not made much progress in this area. Indeed, a report issued by the Equal Employment Opportunity Commission’s (“EEOC”) task force on sexual harassment noted that despite today’s progressive 21st century workplace, harassment remains a persistent and pervasive problem.
Sexual harassment has been defined to mean unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive work environment. While Title VII was enacted in 1964, courts did not recognize sexual harassment as a form of sex discrimination under the law until the 1970s. In 1980, the EEOC created guidelines and regulations further defining the term and prohibited conduct in the workplace.
Despite subsequent federal and state statutory and regulatory prohibitions of sexual harassment, numerous landmark U. S. Supreme Court and state court decisions, and a deluge of multi-media coverage of sexual harassment going back to the 1970’s, (i.e., coverage from RedBook (1976) to the New York Times (1975), iconic movies like “9 to 5” (1980), Anita Hill’s testimony regarding sexual harassment by Clarence Thomas in the 1990’s, to the #MeToo and #TimesUp movements now), it seems that few significant changes have been made in the ways women (and men) are treated at work with harassment continuing to be prevalent in the work environment.
What’s Next: New Legislation and Guidelines
In the hopes of prompting change, in February, the EEOC promised to issue new guidelines (which have not been significantly updated since the 1990’s) quickly with respect to prohibited workplace behavior and sexual harassment. Since October, the EEOC has seen a four-fold increase in searches on their website for information about sexual harassment, but that has not translated to an increase in the actual number of charges filed, yet.
Additionally, there has been a myriad of federal and state proposed legislation inspired by the “Me Too” movement, or the “Weinstein Effect” as it is now being called. The proposed bills are as varied as the state legislature that proposed them, but the common theme has focused on prohibiting confidentiality provisions as a condition of employment and/or as part of a settlement of sexual harassment claims, banning mandatory arbitration of sexual harassment claims, and requiring mandatory anti-harassment training of employees.
For example, proposed legislation in Arizona, California, Florida, Indiana, New Jersey, New York, Pennsylvania, South Carolina, Vermont, Virginia, and Washington focused on prohibiting or significantly limiting confidentiality provisions in settlement agreements. Bills in New York, New Jersey, South Carolina, Vermont, Virginia and Washington would restrict and/or prohibit mandatory arbitration of sexual harassment and discrimination claims. Virginia and Arizona are considering legislation that would require mandatory anti-harassment training (California, Connecticut and Maine already have this requirement).
The U.S. Congress is also going after mandatory arbitration provisions in sexual harassment claims. Attorneys general in all 50 states and the District of Columbia and several U.S. territories have signed a letter to Congress supporting legislation to ban arbitration agreements for sexual harassment claims. The House of Representatives introduced the “Ending Forced Arbitration of Sexual Harassment Act of 2017,” which would amend the Federal Arbitration Act, to prohibit mandatory arbitration of sex discrimination and harassment claims under Title VII. The Senate’s proposed bill would also extend the arbitration ban to gender discrimination. There is also a federal bill in the house that would require employers to report on the number of settlements reached for sex discrimination and harassment claims on their EEO-1 annual reports.
It is still undetermined which if any of the above proposed legislation will actually be enacted as law, but what is clear is continued statutory and judicial activity in this area.
What to Do: Best Practices
So, what can employers do to ensure their workplaces are free from harassment and encourage an environment for employees to speak up when something is wrong while not overreacting? Some best practices include:
Review and revise your Anti-Discrimination and Anti-Harassment Policies, to ensure compliance with federal and state laws (e.g. in California must include anti-bullying provisions).
Review and revise electronic communications policies to ensure compliance with Anti-Harassment and Nondiscrimination policies (e.g., explicit mention of use of inappropriate symbols and emoji's)
Update your Anti-Harassment training programs, require periodic training in accordance with your respective state laws.
Hold managers and employees accountable for both knowing the company’s anti-harassment policy and completing regular training.
Train and periodically re-train your managers and human resources professionals on handling complaints of harassment, investigations and proper documentation.
Create multiple and well publicized avenues for employees to be able to report complaints of harassment (1-800 number to HR, email address for HR, listing of direct and indirect supervisors).
Do not tolerate retaliation.