States, Too, Push Sexual Harassment Reforms

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By Brenna Goth

State legislatures have a split focus this year—outward and inward—as they push to address reports of sexual harassment in workplaces nationwide.

Lawmakers in multiple states are proposing bills that aim to better protect employees in general from being harassed, but they’re also looking at policies to end misconduct within their own ranks.

Many legislatures are convening this month for the first time since accusations against movie mogul Harvey Weinstein—followed by the #MeToo social media movement—exposed sexual harassment in a variety of industries. Some state representatives are starting the year with mandated training, under new policies, and with new task forces to answer to, after allegations shook capitols across the country.

Meanwhile sexual harassment has emerged as a legislative priority in at least a dozen states from Arizona to Florida. States are considering the terms of employer settlements, especially confidentially agreements, and instituting extra protections for workers against misconduct, among other initiatives.

There’s been a “relative explosion” of related bills, said Noreen Farrell, executive director of Equal Rights Advocates. The California-based group tracks state legislation, and its stated mission is to expand opportunities for women and girls.

Though proposals are in the early stages, many initiatives will likely move forward with bipartisan support, Farrell told Bloomberg Law. And success at the state level could buoy federal change, too, she said.

“The states are where the action is,” Farrell said.

Legislators Return to Training, Policy Changes

Calls for changes to sexual harassment policies and procedures within state agencies have come rapidly since October, when media reports on Weinstein started the scrutiny of dozens of powerful men.

From October to late December, officials in at least 30 states were accused of sexual misconduct, according to tracking by politics and elections website Ballotpedia. At least 10 legislators retired or resigned after facing allegations or investigations, the site said.

Several states start their 2018 legislative sessions with new mandates on anti-harassment training. All executive branch employees in Vermont, for example, will take classes on how to identify and prevent problems, to ensure that the state is “vigilant in protecting its employees,” Gov. Phil Scott (R) said in a statement.

In Florida, where a state senator recently resigned amid allegations of unwanted touching and other misconduct, Gov. Rick Scott (R) signed an executive order on the subject in December. It requires that a formal process be set up for filing and investigating complaints and that employees at the state’s executive-branch agencies receive sexual harassment prevention training.

The Arizona House of Representatives issued its first written sexual harassment policy following complaints there. Legislative bodies in Connecticut, Delaware, Maryland, and New Mexico, among others, are reviewing or updating their rules.

Everyone wants a simple solution to the sexual harassment problem, but writing a policy or providing training alone isn’t a silver bullet, said Debbie Dougherty, a professor of communication at the University of Missouri. Among other things, her research covers what makes sexual harassment policies ineffective.

Problems are often embedded in the culture of organizations, Dougherty told Bloomberg Law. Leaders need to do some “soul searching” on how to change that, she said.

Action in California, Illinois, NY

Some lawmakers are trying to strengthen the reporting system for people affected by sexual harassment within the legislature. Statehouse representatives throughout the country—mostly women—have signed onto open letters in recent months criticizing widespread harassment and systems that fail to protect them.

In California, Assemblywoman Melissa Melendez (R) is trying again this year, after several failed attempts, to pass a bill extending whistleblower protections to employees of the Legislature. Lawmakers are also weighing changes to the internal complaint, investigation, and discipline process. On the first day of the session, the houses announced a bicameral joint committee to review progress thus far.

The state’s women’s caucus has said the process lacks accountability for perpetrators, protections for those who complain, and unified, bicameral principles. An October letter from a group called We Said Enough was signed by more than 140 women alleging pervasive harassment and assault in and around the Capitol.

Illinois Gov. Bruce Rauner (R) signed bills in November addressing sexual harassment complaints in state government. One measure strictly prohibits sexual harassment by elected officials, Capitol staff, and lobbyists, and creates annual training requirements. A second law grants the legislative inspector general the authority to investigate pending complaints regardless of the one-year statute of limitations on ethics complaints.

In New York, Gov. Andrew Cuomo (D) said the state government needs to turn “society’s revulsion into reform.” He recently outlined priorities including preventing the use of taxpayer money for sexual assault and harassment settlements.

More Women Running for Office

Misconduct comes within the context of legislatures that are predominantly male. About 25 percent of legislators nationwide are women, according to data from the Center for American Women and Politics at Rutgers University.

That percentage has plateaued in recent years, Associate Director Jean Sinzdak told Bloomberg Law. But the number of women considering a run for state legislatures, statewide positions, and congressional offices is skyrocketing based on the early tracking of those who’ve announced interest, she said.

The increase is attributable to the 2016 presidential election, though it’s harder to measure the impact of the national conversation on sexual harassment, Sinzdak said. Still, voters may notice the change in 2018 elections.

“It very well may be a completely different landscape,” Sinzdak said.

Bills to Curb Secrecy Deals, Forced Arbitration

As states grapple with their own systems surrounding sexual harassment, some are also pushing for changes that would affect the private sector. Federal protections against sexual harassment under Title VII of the Civil Rights Act apply only to employers with at least 15 employees.

Trends this year include measures on confidentiality for settlement agreements, forced arbitration, and statutes of limitations regarding harassment complaints, Farrell from Equal Rights Advocates said. Some measures are directly tied to the Weinstein allegations and #MeToo.

Equal Rights Advocates is sponsoring a bill in California to clarify that harassment among investors, as well as movie producers, elected officials, and other professionals, is illegal. A New York legislator is drafting a bill to ban companies there—like the Weinstein Co.—from receiving tax credits or benefits if they hid misconduct or knew about it and didn’t stop it.

Legislators in a handful of states are also proposing to restrict confidentiality agreements related to sexual harassment and assault. A Washington state bill, for example, would bar employers from making workers sign an agreement that prevents them from talking about harassment.

Attorney: Secrecy Bans Could Backfire

Removing secrecy clauses from settlements increases the accountability of predators, according to many worker advocates. But the legislation could pose risks to both employees and employers, Jonathan A. Segal, a partner for Pennsylvania’s Duane Morris LLP, said. Segal has worked on sexual harassment issues for more than two decades.

Some employers settle amicably in cases where conduct is inappropriate but not illegal, or it’s unclear what happened, Segal told Bloomberg Law. Changes in confidentiality might make them reluctant to settle, fearing a resolution could be seen as an admission of guilt.

And people alleging misconduct may not want to sue.

“Some employees could end up with nothing as a result,” Segal said.

Will Momentum Last?

It’s still unclear how much change will come from the initial policy reviews and calls for action, Jennifer Drobac, professor at the Indiana University Robert H. McKinney School of Law, told Bloomberg Law.

Drobac is pushing to maintain momentum in places like Indiana, where a state civil rights enforcement provision requires employers to agree in writing to be sued. State laws can have a big impact on whether people who’ve experienced harassment can pursue a case, she said.

“You need such a critical mass to affect change,” Drobac said.

—With assistance from Aaron Nicodemus, Gerald B. Silverman, Paul Shukovsky, Paul Stinson, Alex Ebert, Laura Mahoney, Chris Marr, Andrew M. Ballard, Tripp Baltz, Leslie A. Pappas and Michael J. Bologna

To contact the reporter on this story: Brenna Goth in Phoenix at bgoth@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

Copyright © 2018 The Bureau of National Affairs, Inc. All Rights Reserved.

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