In the wake of the #MeToo Movement, New York, California and a number of other jurisdictions, both local and state, have passed new laws aimed at combatting sexual harassment in the workplace. The New York laws require written sexual harassment prevention policy, assurance that all current and new employees, and even applicants for employment, receive a copy of the policy, and mandate annual sexual harassment training for all employees. In addition, New York law now provides that employers can be liable for sexual harassment of nonemployees in the workplace, such as contractors, vendors and subcontractors. Recent legislation prohibits employers from using mandatory arbitration provisions in employment contracts or nondisclosure agreements except when this is the victim preference. Let me suggest that there are some important lessons to be learned from these laws.
- Most employers already have a written sexual harassment prevention policy, but how many have reviewed that policy in the wake of the #MeToo Movement? A review may find gaps in definitions of harassment or promises of follow up and commitment to prevention of retaliation. You may also want to communicate an iron clad commitment to the positive values of respect, inclusion, and transparency.
- Not long ago many employers thought harassment training was only for their supervisory staff, and then only on occasion. At this point, every employer ought to look at comprehensive, targeted, and individually crafted sexual harassment prevention training, as well as training on respect and inclusion, and do so on an annual basis. Not only will this practice pay dividends in reducing the incidents of harassment, but increase employee participation as bystanders to prevent bullying, disrespect, and discriminatory behavior in the workplace. You may also see increased retention and improved employee performance when a more positive workplace is achieved.
- Recognizing that employers are liable not only to secure harassment-free work for their employees, wherever they are stationed, but to ensure a harassment-free workplace that values third parties, is merely an extension of identifying and living by the values of inclusion, respect, and fairness.
- While the other changes in the law, relating to restrictions on the use of arbitration and restrictions on nondisclosure agreements, may not be policies that need be embraced, the thought behind them, to increase public exposure of claims and settlements, should spur employer review of their culture and workplace. Do not assume that sexual misconduct in the workplace will escape public notice, but take all necessary steps to prevent such sexual misconduct or other forms of discrimination or harassment from taking place at any time.
While not an advocate for all these new New York laws, I am certainly an advocate for employer awareness and prevention of the very serious harm that sexual harassment and disrespectful conduct can create. Review your policies, train your employees, and embrace a positive, forward looking culture, where you would be proud to have a camera and film crew recording the interactions among your employees on a day-to-day basis.