As employers prepare their “Return To Work” plans, clear communications to employees about protocols and expectations will be critically important.  Recent updates to the federal Equal Employment Opportunity Commission (EEOC) COVID-19 publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEOC Laws,” discuss “reminders” that employers should consider providing to employees on various EEO-related “Return To Work” topics.

Anti-Harassment Reminders

Near the beginning of the COVID-19 outbreak in the U.S., as reports of harassing conduct towards Asian individuals increased, the EEOC was quick to remind employers that they could reduce the chance of harassment by explicitly communicating to the workforce that fear of the pandemic “should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.”  (E.1.)

The EEOC reiterated that guidance in its recent updates, noting that workforce reminders should:

• Note Title VII’s prohibitions on harassment;
• Remind employees that harassment will not be tolerated;
• Encourage anyone who experiences or witnesses workplace harassment to report it to management; and
• Remind employee that harassment can result in disciplinary action up to and including termination.

(E.3.)  The EEOC further emphasized that managers in particular should be reminded of their roles in watching for, stopping, and reporting any harassment or other discrimination, and that managers should specifically “be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about

Employers in recent months have understandably been laser-focused on COVID-19. However, Illinois employers – including employers who are largely based outside of Illinois but have even one employee who works in Illinois – should be mindful of their new obligation to provide annual sexual harassment prevention training before the end of the year (and yearly thereafter) under the Illinois Workplace Transparency Act (“WTA”) and its amendments to the Illinois Human Rights Act (“IHRA”). Recently, the Illinois Department of Human Rights (“IDHR”) published its Model Sexual Harassment Prevention Training Program (the “Model Training”), which should be used as a guideline for ensuring employers’ own training programs comply with the WTA.

Administration of the Training

All Illinois employers must implement a sexual harassment prevention training program by the end of 2020 and subsequently provide the training on an annual basis. Unlike in some other states, there are no length or format requirements for the training, except that the training must be “interactive,” must be accessible to employees with disabilities, and must be accessible to employees who speak languages other than English.

The minimum content requirements for all employees are:

On April 28, 2020, IDHR released

We continue to speak with clients on a regular basis about preventing bullying in the workplace, and taking steps to foster a safe environment. If you would like to hear more on these topics, please join me for an upcoming CLE webinar, “Workplace Violence Law: Minimizing Claims” on Tuesday, February 25, 1:00pm-2:30pm EST. Click this link for more information: https://www.sp-04.com/r.php?products/tlgehceena

Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers review their employee policies. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Employment and Labor practice group.

On June 19, 2019, the New York Legislature voted to reform New York discrimination law. See NYS Assembly Bill No. A8421.  Although Governor Andrew Cuomo is expected to sign the bill, as of August 7, 2019, it still has not been delivered to him.

This post will focus on changes regarding mandatory arbitration and non-disclosure clauses, the Faragher-Ellerth defense and damages awards.  Below is a summary of some of the provisions in the bill including those covered by our prior post on the expansion of the New York State Human Rights Law (“NYSHRL”), and the effective date of each provision.

In 2018, in response to the #MeToo and #TimesUp movements, New York State enacted laws to provide stronger protections against workplace sexual harassment, including mandating that New York employers have a complaint and investigation process and a sexual harassment policy, and provide their employees with training.

On June 19, 2019, the New York Legislature voted to further reform New York law and to extend protections under the New York State Human Rights Law (“NYSHRL”) to employees of all protected categories from all forms of discriminatory harassment in the workplace.  See NYS Assembly Bill No. A8421.  The bill is expected to be signed by Governor Andrew Cuomo, who supported the measure.

Once enacted, some provisions will take immediate effect while others will be phased in over the course of one year.  Here is the timeline for some of the provisions:

The #MeToo movement continues to make headlines across the globe, toppling more than 200 powerful U.S. company leaders in entertainment, media, sports and a variety of other industries.  According to EEOC reports, sexual harassment charges have increased by 14% and EEOC-filed lawsuits asserting harassment have increased by 50%.  Larger amounts of cash are being paid to settle harassment suits, and those amounts may be minor compared to the reputational damage of being tried in the court of public opinion.

Directors have long grappled with how to oversee company “culture” and employee behaviors.  Now many boards find themselves wedged between a rock and a hard place, as they struggle to balance the need for swift action when a complaint is made versus the need for appropriate due process rights for the accused.

Boards increasingly are expected to investigate stale and non-actionable claims and off-duty conduct.  They are also expected to treat wrongdoers swiftly and severely.  Employees and stockholders push for transparency in investigations, as boards temper the need for transparency with the risks of defamation, tort or other claims that may be brought by the accused, as well as personal privacy rights when dealing with controversial, off-duty conduct.

The potential unintended consequence of polarizing genders also must be monitored by the board.  Recent research found that two-thirds of male executives hesitate to hold one-on-one meetings with women in more junior positions for fear they could be misconstrued.  This behavior effectively deprives one gender of valuable mentorship and opportunities to interact with

On Sunday September 30, 2018, while many of us were busy setting our Fantasy Football lineups, outgoing Governor Jerry Brown signed a number of work-related bills arising in response to the #MeToo movement that will substantially alter employers’ exposure to liability for workplace harassment, prohibit many common practices used to reduce adverse publicity surrounding workplace harassment claims, and impose additional training and inclusion requirements.

SEXUAL HARASSMENT OMNIBUS BILL, SB 1300

The most far-reaching of the new laws is SB 1300, the Sexual Harassment Omnibus Bill, which amends the California Fair Employment and Housing Act (“FEHA”).  Under SB 1300, FEHA will now expressly affirm some harassment-related court decisions and disavow others, embedding into the statute the following legal concepts and ever-expanding scope:

• The plaintiff in a workplace harassment suit is only required to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do his or her job.  It is not necessary to show a tangible decline in productivity.
• A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile or offensive working environment.  (Here, SB 1300 expressly rejects a decision authored by #MeToo casualty Alex Kolinski, a former judge on the Ninth Circuit Court of Appeals, which provided that a one-time physical encounter was
  

Forty-five years after the law “for professional equality,” the wage gap between women and men persists. In order to overcome this, the law “for the freedom to choose one’s professional future” imposes new measures on companies. The French law “for the freedom to choose one’s professional future” was definitively adopted on 1 August 2018 by the French Parliament and approved on 4 September by the Constitutional Council (Decision No. 2018-769 DC of 4 September 2018); it was published in the Journal Officiel on 6 September 2018.

The overriding principle is that all employers must have as an objective the removal of the pay gap between women and men (new article L. 1142-7 of the Labor Code). Further, while there is no penalty for non-compliance with this principle in itself, certain provisions of the law are mandatory and subject to sanctions if not respected.

Of particular note are provisions that apply to companies with at least 50 employees:

• The employer must annually publish indicators relating to pay gaps and the actions implemented to remove them (the terms and methodology of this annual publication will be defined by decree) (new Article L. 1142-8 of the Labor Code). In the absence of publication, a financial penalty may be applied under conditions determined by decree (yet to be published).
• If the results obtained by the company are below the indicators defined by the decree, catching-up financial measures must be considered (Article L. 2242-1 of the Labor Code). If no agreement is reached, these
  

The French law “for the freedom to choose one’s professional future” definitively adopted on 1 August 2018 by the French Parliament and approved on 4 September by the Constitutional Council (Decision No. 2018-769 DC of 4 September 2018) was published in the Journal Officiel on 6 September 2018. The law strengthens the fight against sexual harassment and sexist behavior in companies.

Under the new law, by 1 January 2019 at the latest, certain employers will be required to take measures to combat sexual harassment and sexist behavior in the workplace:

• The obligation to appoint the following points of contact:

(i) A point of contact in companies with at least 250 employees, responsible for guiding, informing and supporting employees in the fight against sexual harassment and sexist behavior (new article L. 1153-5-1 of the French Labor Code). The objective is to enable victims of such acts to identify a contact person within the company.

(ii) A point of contact nominated by a company’s Social and Economic Committee (Comité social et économique) from among its members, regardless of the number of employees, for a period ending with the term of office of the elected members of the Committee (Article L. 2314-1 of the amended French Labor Code).

• The reinforcement of the obligation to post the civil and criminal consequences of sexual harassment and the contact details of the authorities and competent services in workplaces and on the premises where the hiring is done. The list of these services will
  

Responding in part to the #MeToo movement, state and local governments have begun expanding protections for those alleging discrimination and harassment in the workplace.  Last month, the Illinois General Assembly passed a series of amendments to the Illinois Human Rights Act (“the IHRA”) that may have a significant impact on employers if they are signed into law by Governor Bruce Rauner.

• House Bill 4572: Currently, the IHRA applies to employers who employ 15 or more employees within Illinois for at least 20 weeks per year.  HB 4572 would essentially cover all Illinois employers—any employer who employs one or more employee for at least 20 weeks per year.
• Senate Bill 20: SB 20 makes several changes to the procedures of the Illinois Department of Human Rights (“IDHR”) and the Human Rights Commission (“the Commission”). Among other things, SB 20 would:
  • Extend the charge-filing period from 180 days after an incident giving rise to a claim to 300 days after the incident;
  • Require the IDHR to notify all parties that the complainant may “opt out” of participating in the IDHR process within 60 days and commence a lawsuit in state court;
  • Change the make-up of the Commission from 13 part-time Commissioners to 7 full-time Commissioners, all of whom must either be licensed to practice law in Illinois or have relevant professional experience;
  • Create a temporary panel of 3 Commissioners to handle the backlog of requests for review; and
  • Require the publication of Commission decisions within 180 days.