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An Overview of Policy Efforts to Combat Sexual Harassment and Other Forms of Discrimination in 2021

Written by Monika Dymerski

The “me too” movement was a watershed moment in American history. Tarana Burke, the founder of the growing movement, has been using the terminology since the early 2000s. However, it wasn’t until 2017 that people across the country and the world took shared ownership of the meaning of “me too” to speak out about their experiences and demand improved accountability, transparency, and greater protections for survivors of sexual harassment and violence.   

The #MeToo hashtag went viral after allegations of sexual abuse against Harvey Weinstein were made public and millions of women were empowered to share their experiences of sexual harassment and assault. Increased public awareness about the extent of the problem provided an important opportunity for advocates to push for bold reforms at the state and federal levels.  

Since then, numerous laws have been enacted throughout the country to better prevent and address sexual harassment and other forms of discrimination. However, many employees still face harassment in the workplace today. The work is far from done and it must continue in light of the harm that sexual harassment inflicts on workers, predominantly women, who experience it.  

According to the Pew Research Center, 6 in 10 women say they’ve experienced verbal or physical sexual harassment; however, this number is likely higher since victims are often hesitant to speak up. The hesitation to report is linked to a variety of factors, a prominent one being that 75% of workplace harassment victims experience retaliation when they speak up.   Sexual harassment is not only harmful to workers but also poses negative consequences for employers who face employee turnover, legal costs, increased absences, and reduced productivity overall.  

COVID-19 highlighted the broad structural inequities that hold back women, in particular women of color. Employees, especially those in low-paid industries, are at an increased risk for assault and harassment because they fear that speaking out will put their job and economic security at risk during this crisis.  It is therefore particularly important now that we continue to strengthen workplace rights, including stronger protections against harassment.   

In 2021, legislation was introduced in states throughout the country to combat harassment, including by restricting the use of non-disclosure agreements and other contractual provisions used to silence workers from speaking out; requiring sexual harassment prevention training; extending statutes of limitations (filing deadlines); and providing legal protections to more workers.   

Restricting Non Disclosure Agreements (NDAs) & Other Worker Silencing Mechanisms 

 NDAs are increasingly used by employers to prevent workers from speaking out about harassment, discrimination, or assault at work. In some circumstances, NDAs are imposed as a condition of employment to conceal unlawful or potential activity that an employee may experience or observe. They are also often contained in settlement or severance agreements. Not only are NDAs harmful because they silence workers from being able to share their experiences, but they often shield perpetrators of sexual harassment and assault from any risk of exposure and enable companies to sweep sexual harassment under the rug without any public accountability. 

 Researchers at the University of Pennsylvania, the University of Minnesota, and the University of Maryland conducted a study on the effects of NDAs and what happens when states prohibit employers from imposing NDAs as a condition of employment.  They found that “broad NDAs restrict the dissemination of negative information about companies [and] thereby protect employers with harmful employment practices, prevent job seekers from learning valued information about potential jobs, and make it harder for the employers with the best workplaces to stand out.” The research showed that in states that passed laws prohibiting NDAs in these circumstances, more workers publicly shared their experiences of workplace sexual harassment after the laws were enacted than in states without such laws on the books. The researchers concluded that more states and Congress should enact limitations on NDAs required as a condition of employment because they limit workers’ ability to talk about workplace abuses and shield harassment from public view.  In 2021, several bills were introduced to address this issue.  

 In California, SB 331, the Silenced No More Act, was passed to expand the existing prohibition on nondisclosure agreements in settlement agreements related to sex-based discrimination and harassment to apply to all forms of workplace harassment or discrimination. The law does, ​​however, permit the employee to request confidentiality if they so choose and allows the parties to agree to keep the settlement amount confidential. SB 331 also expanded the existing limitations on so-called “non-disparagement” agreements, which are also often used to silence workers from speaking out about abuse. The law prohibits employers from including non-disparagement agreements if they prevent workers from disclosing information about unlawful or potentially unlawful conduct in the workplace, such as harassment or discrimination. 

 Nevada passed AB 60 which deems both contract and settlement provisions void and unenforceable if such a provision restricts a party from testifying at a judicial or administrative proceeding related to the other party’s commission of a criminal offense, sexual harassment, discrimination, or related retaliation.  

 HB 3418 in Illinois; SD 2389 in Massachusetts and HB 938 in Pennsylvania proposed similar limitations on NDAs related to sexual harassment or assault and are still pending. 

 Sexual Harassment Prevention Training 

 Sexual harassment training is not a stand-alone solution to preventing harassment in the workplace but is one of many strategies employers should employ. As evident in this post, it is imperative that employers address sexual harassment via a comprehensive approach, including strong anti-harassment policies; engaged leadership; demonstrated accountability and training. Training alone is not sufficient; however, when conducted correctly, it is a critical part of effective prevention efforts. Some critical aspects of proven effective anti-harassment training are that training should be industry-specific, interactive, include targeted follow-up, and conducted on a regular basis. 

In Connecticut, SB 1023 was enacted to provide free, online sexual harassment training via the state’s Commission on Human Rights and Opportunities (CHRO). This law also expands the duties and responsibilities of the CHRO to better enforce sexual harassment standards in the workplace. In Virginia, HB 1228 was enacted to require contracting agencies with five or more employees to provide annual sexual harassment training. 

As in the private sector, jobs in state government are not immune to harassment. In recognition of this, Nevada enacted SB 51 which requires the state government to develop a policy on sex and gender-based harassment, including training requirements for all state executive employees and supervisors, and procedures for filing complaints. The new law also creates an internal agency charged with investigating harassment complaints.   

A pending bill in Massachusetts (SD 1171) seeks to address sexual harassment in the workplace by requiring employers to adopt and post a written policy and requires dissemination of that policy to all employees annually. The bill also requires employers to provide sexual harassment training to employees within six months after they are hired and on an annual basis thereafter. The bill outlines specifics that the training must cover. 

New York was a standout state in this area, where legislators introduced five different bills focused on sexual harassment training. Both A 470 and S 4876 would require employee confirmation of having received sexual harassment prevention training. A 1547 is an industry-specific bill which would require sexual harassment training for hotel and motel employees every two years. S 6943 would require the state Department of Labor to provide a model sexual harassment prevention training program in an interactive format that would satisfy the states existing training requirements for employees. A 395 would establish sexual harassment prevention training protocols within the private sector including a model management policy, training program, and method for properly disseminating information to employers and employees. These bills are all pending.   

Clarifying Broad Coverage of Sex Discrimination and Harassment Protections   

Workers frequently face harassment and other forms of discrimination based on their gender identy and gender expression. In 2020, the U.S. Supreme Court held in Bostock v. Clayton County, Georgia (2020) that the prohibition on sex discriminationin federal law (Title VII) includes discrimination based on sexual orientation and gender identity. Several state laws already explicitly prohibit these forms of discrimination and in 2021, Oregon joined suit by enacting HB 3041 to add a definition of “gender identity” and require that it must be included wherever “sexual orientation” language is present in the law. Colorado enacted HB21-1108 which includes discrimination based on “gender expression” in addition to sexual orientation and gender identity in state anti-discrimination law.  

In Texas, HB 45 was enacted to define unlawful employment practice when an employer knows about the action or fails to take corrective action against the harassment.   

Georgia (HB 549) and Iowa (SF 221) have proposed bills that would define and detail sexual harassment in their state statutes. Similarly, S 3352 and S 273 in New Jersey would clarify unlawful employment practices by employers when handling sexual harassment situations in the workplace. These bills are all pending.   

In New York, A 1222, S 747, A 1190, A 2200, all still pending, would create the crime of official misconduct for sexual harassment by a public servant, making it a class A misdemeanor.  

Extending Filing Deadlines 

Federal law requires workers to file claims of sexual harassment or other forms of discrimination within either 180 or 300 days (depending on geographic location) after the conduct has occurred. Many states have similarly short statutes of limitations (filing periods) in which workers must file claims or otherwise forfeit their ability to seek legal redress.  

These short statutes of limitations are harmful because people, especially low-wage workers, are often unaware of their legal rights and the applicable legal deadlines and frequently unable to speak with a lawyer. Often, by the time they realize they may have a legal claim, the filing deadline has passed, thereby denying them access to justice and allowing harassment to go unaddressed.  In response, a growing number of states have extended the time in which workers can file these claims.   

In Texas, HB 21 was enacted to extend the statute of limitations for reporting sexual harassment claims to the Texas Workforce Commission from 180 to 300 days after the harassment occurred.  

Nevada enacted AB 222 which expands protections for employees who report workplace problems internally and clarifies that the filing of a complaint with the Nevada Equal Rights Commission or the federal Equal Employment Opportunity Commission “tolls” (pauses) the statute of limitations (filing deadline) to bring a lawsuit under Title VII or state law during the pendency of the complaint.   

In New York, A 1949 would prohibit an employer from implementing its own statute of limitations on the victim’s ability to report a sexual harassment claim. A 6534 would amend state finance law to require bidders to provide reports on sexual harassment. Both bills are pending.   

Expanding Protections to Cover More Workers 

Federal anti-discrimination and harassment law (Title VII), only applies to employers of 15 or more employees and it only provides protection to those who qualify as “employees.” A number of state laws are similarly limited in their coverage. Therefore, one critical way to strengthen anti-harassment protections is to ensure that laws provide protection to other people who perform work such as independent contractors, interns, and volunteers, and ensure that they apply to employers of all sizes so certain groups of workers are not left unprotected and vulnerable. Specifically, due to its 15-employee threshold, Title VII excludes many domestic workers, leaving them particularly vulnerable to harassment. In 2021, Virginia joined a growing number of states that have recognized the value and importance of household domestic workers by enacting legislation that protects domestic workers from harassment and other forms of discrimination.  

For its part, Texas recognized that the right to work free of harassment should not depend on the size of your employer by enacting SB 45 which extends protections against sexual harassment to all employees, regardless of employer size.  

At the federal level, Equal Rights Advocates and other advocates continue to support and urge the passage of the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act. The Be HEARD Act would provide comprehensive reforms to federal anti-discrimination and harassment law, including training and other prevention strategies; resources to assist employers in preventing and addressing harassment; elimination of the tipped minimum wage, which exacerbates harassment; expansion of protections for workers at small businesses, independent contractors, interns, fellows, volunteers, and trainees; clarification of protections for LGBTQI+ workers; clarification of the legal standard workers must meet to prove harassment claims; extension of the statute of limitations for workers to file harassment claims; elimination of caps on damages for workers who successfully bring claims of harassment and discrimination; and other critical protections.   

It is critical that we continue to advocate for robust reforms at the state and federal levels to ensure that no worker is forced to endure harassment as the price of a paycheck.