Sexual Harassment

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The Connecticut General Assembly ended its legislative session quietly for the second year in a row. There were significant employment proposals on pay equity, paid FMLA, sexual harassment and discrimination, paid sick leave, and an increase in the minimum wage, but the General Assembly only passed the pay equity bill.

Pay Equity

The General Assembly passed “An Act Concerning Pay Equity.” Under this law, employers will be prohibited from inquiring or directing a third party to inquire about a prospective employee’s wage and salary, unless the prospective employee has voluntarily disclosed such information.

This law does not apply to employers or third parties who are required to inquire about wage or salary history by federal or state law. The law also does not prohibit employers from inquiring about other elements of a prospective employee’s compensation structure (e.g., whether the employee received stock options.) However, the employer may not inquire about the value of other elements of the prospective employee’s compensation structure (e.g., the value of the stock options.)

The Governor has indicated that he will sign this bill into law and if signed, it will take effect on January 1, 2019.

No Changes to Sexual Harassment Laws

One of the most surprising developments was the failure of the General Assembly to pass reforms to the state’s sexual harassment laws. Proposed bills would have, among other things, increased the number of employers required to provide sexual harassment training and would have required training for non-supervisory employees. One proposal also would have eliminated an important affirmative defense for employers and would have significantly increased the statute of limitations for bringing such claims.

These proposals were made in the wake of the #MeToo movement and had overwhelming support among legislators. It appears that the bill failed to pass due to concerns about a provision extending the statute of limitations for certain sex crimes. It remains to be seen whether the momentum for strengthening the state’s laws on sexual harassment will carry through to the next legislative session.

Employers should not take the Connecticut legislature’s failure to pass a bill as a sign that the #MeToo movement is waning. In fact, New York state, and New York City, recently passed laws requiring sexual harassment training for all employees. Other neighboring states also are considering new sexual harassment laws. Connecticut employers should continue to review their policies and procedures on preventing and properly responding to harassment in the workplace. Covered employers must continue to train their supervisors and, although not legally required to do so, an increasing number of employers also are training non-supervisory employees.

Please contact us if you are considering training your non-supervisory employees as we have developed a program for this audience.

Legislators in the Connecticut State House and Senate have proposed legislation that would significantly impact sexual harassment cases and sexual harassment training requirements.  Although the proposals differ slightly, it is clear that legislators are seeking to expand sexual harassment training, including requiring employers to train non-supervisory employees.  One proposal also seeks to extend the limitation and deadline periods for accusers to bring complaints before state courts and the CHRO.

The proposal pending in the Senate is titled “The Time’s Up Act.”  The proposal, which is a clear response to the #MeToo and Time’s Up movements, purports to be the “Largest Overhaul in Connecticut History of Sexual Harassment Laws.”  The Time’s Up Act proposes the following changes:

  • Requires employers to email their sexual harassment policy and the remedies available under the law to employees at least once a year, in addition to posting them in the workplace. A significant increase in the fine for failing to comply with this requirement (the current fine is $250.)
  • Requires employers with 3 or more employees (rather than the current 50 or more threshold) to provide sexual harassment training to both supervisors and non-supervisory employees (rather than just supervisors.)
  • Extends the statute of limitations to file a harassment complaint with the CHRO from 180 days (or 6 months) to 2 years after the alleged harassment or discrimination.
  • Extends the deadline to file a lawsuit with the court after the CHRO issues a release of jurisdiction from 90 days to 2 years.
  • Allows the CHRO to provide injunctive relief to employees who work for employers with 3 or more employees (rather than the current 50 or more threshold.)
  • Authorizes the CHRO and private parties to petition for or request punitive damages in sexual harassment or other employment discrimination cases.
  • Prohibits nondisclosure provisions in settlement agreements and other contracts.

The proposal pending in the House (HB 5043) is titled, “An Act Promoting A Fair, Civil and Harassment-Free Workplace.”  Under the proposed bill:

  • Employers with 15 or more employees will be required to provide training to both supervisors and non-supervisory employees (rather than current 50 or more threshold or the 3 or more threshold under The Times Up Act.)
  • Training would consist of two cumulative hours of what legislators have called “awareness and anti-harassment compliance training and education” within 6 months of promotion of supervisors and 6 months of hire for employees. This requirement would take effect on October 1, 2019.  Employers who provide this training between October 1, 2017 and October 1, 2019 would not be required to provide it for a second time.
  • Training would include, but not be limited to, examples of the types of conduct that constitute and do not constitute harassment and strategies to prevent harassment, bystander intervention training, a discussion of workplace civility that includes what is acceptable and expected behavior in the workplace, and training on the employer’s policy against harassment.
  • Employers with 3 or more employees must post information on all types of harassment and the remedies available to the targets of such harassment on an annual basis. This information must be directly communicated to employees.  Unlike The Time’s Up Act, HB 5043 does not specify how it must be communicated to employees.

Our firm has been proactive in crafting sexual harassment training that is responsive to the current climate and consistent with emerging views on harassment.   In addition to our recent seminar, Rethinking Sexual Harassment Prevention, we regularly provide sexual harassment training to supervisors and have developed a new program directed at non-supervisory employees.  In the event that either of these legislative proposals passes this term, we are prepared to provide the newly required training.

You can find HB 5043 here, and The Time’s Up Act here.

Lawyers and employers must examine what the #MeToo uprising and the ongoing media coverage of high profile sexual harassment claims mean for the workplace. Learn about individual and board liability; how to assess workplace culture, including how human resource departments are perceived by employees; about workplace investigations with an emphasis on how to address rumors and/or complaints made against high level executives and star employees; and how juries may react to sexual harassment claims. The speakers will address sexual harassment prevention training and anti-discrimination and harassment policies, along with proposed changes to the federal and/or state sexual harassment laws.

Partners, Vincent Farisello and Sarah Healey will present this CLE for the Connecticut Bar Association on Monday, April 30th. Associate, Alan Bowie, Jr. organized this event in his role as Co-Chair of the Young Lawyers’ Section, Labor and Employment Committee.

For more information, please click here.