In the continued fallout from the ‘#MeToo’ movement, Connecticut Governor Ned Lamont has signed new legislation imposing sweeping changes to Connecticut’s human rights law designed to reduce sexual harassment in the workplace and provide additional protections to victims of sexual harassment. The Act Combatting Sexual Assault and Sexual Harassment (the ‘Act’), which takes effect on 1 October 2019, expands the sexual harassment prevention laws by requiring additional training for employees and imposing new notice and posting requirements. Those making claims of sexual harassment and other discrimination claims will have increased remedies available to them. The following are the most significant changes to the Act that will directly affect employers on a daily basis. All employers, regardless of size, should take note of these changes and begin preparation for the new laws.
1. Employer sexual harassment notice and posting requirements
The first of the many changes is to posting requirements. Beginning on 1 October 2019, employers of three or more employees must not only post notice regarding the illegality of sexual harassment and remedies available to victims of sexual harassment in the workplace, but must now also send a copy of this information, by email, to employees within three months of hiring them. The subject line of the email must include the words ‘Sexual Harassment Policy’ or similar phrasing. If the employee does not have a company email account or has not provided the employer with a personal email address, the employer must post the information on its website, if the employer has one, or provide employees with a link to the Commission on Human Rights and Opportunities’ (the ‘Commission’) website that provides information on the illegality of sexual harassment and the remedies available to the victim. Failure to meet these requirements exposes employers to a USD 1000 fine.
2. Sexual Harassment Training Requirements.
The Act also significantly changes the sexual harassment training requirements for Connecticut employers. Beginning on 1 October 2019, the Act requires all employers to train supervisors. Employers with three or more employees must train all employees. This is a significant change to the law, which, up to this point, has only required training for supervisors in companies with 50 or more employees.
Employers must provide this training to employees by 1 October 2020, for all current employees. Employers should note that employees who have already received sexual harassment training after 1 October 2018 do not need to be retrained. For any new employees or employees promoted to supervisory roles after 1 October 2019, the sexual harassment training must occur within six months. Further, employers must provide additional sexual harassment training ‘periodically’ and at least every ten years for all supervisory and non-supervisory employees, although we recommend more frequent retraining. Employers should be aware that failure to provide such training and education will be classified as a ‘discriminatory practice’ and exposes the employer to legal liability after the Act goes into effect on 1 October 2019. Employees may bring a complaint to the Connecticut Commission on Human Rights and Opportunities (CHRO) or in court against any employer who fails to carry out the training, and a fine may be imposed.
The Act requires that the CHRO develop a free online training video or other interactive training method that employers may use. When that will be available to employers is not yet known.
An employer who fails to meet these training requirements will be subject to a USD 1000 fine, although it is unclear if this is the maximum fine, or if it can be imposed on a per-employee basis.
3. Inspection by CHRO
With the effective date of the Act, the CHRO is explicitly authorised to enter into businesses to ensure that posting and training requirements are being met and to review ‘records, policies, procedures, postings and sexual harassment training materials maintained’ by the employer where the CHRO has a reasonable belief of non-compliance or within the 12 months following the date on which a CHRO complaint has been filed against an employer. Inspection must be done during business hours and may not ‘unduly’ disrupt business operations.
4. Employee Protections
The Act also extends additional protections for employees claiming sexual harassment in the work place.
If an employee complains about sexual harassment in the workplace, an employer may not make any changes to that employee’s terms and conditions of employment as part of any corrective action unless the employee agrees to the changes in writing. This means that the employer may not relocate an employee, transfer an employee to another department or make other significant changes to the complaining employee’s work schedule without his or her written consent in order to separate a harasser from his or her victim.
Statute of Limitations
The Act extends the time in which an employee may file any claim of discrimination, including but not limited to sexual harassment, in the workplace under the Connecticut Fair Employment Practices Act (CFEPA). Effective 1 October 2019, for discriminatory conduct that occurs on or after 1 October 2019, employees will be permitted 300 days to file a claim with the CHRO, rather than the current 180 days.
Punitive Damages. Beginning on 1 October 2019, Connecticut courts may award punitive damages in cases of employment discrimination. This revision is clearly in response and to overrule the Connecticut Supreme Court’s decision in Tomick v. UPS in which the Court held that punitive damages were unavailable under the CFEPA as they were not provided for in the language of the CFEPA.
Damages Available at Public Hearing
While the current law only permits a CHRO hearing officer to award reinstatement and back pay as forms of relief, the Act, effective 1 October 2019, expands that authority to also include damages suffered by an employee as a result of discriminatory conduct, including actual costs incurred by the complainant, as well as reasonable lawyers’ fees and costs. This significantly expands the remedies an employee may seek at the administrative level.
Employers’ Bottom Line
With the new law taking effect now in only two months, all employers should take steps to ensure compliance.
- Develop a sexual harassment policy or ensure your current sexual harassment policy is up to date.
- Circulate the sexual harassment policy via email or post it to your website if your employees do not have email addresses in accordance with this Act as soon as practicable on or after 1 October 2019, and provide to each new employee immediately upon hire. We recommend that employers add this to their new hire checklist as a reminder.
- Begin looking now for resources to provide sexual harassment training that meets Connecticut’s new requirements. We recommend that all employees be trained or retrained as soon as practicable and that this training also be included in each employers’ new employee training and new hire checklist.
- Be aware of the corrective measures portion of the Act and ensure that in remediating sexual harassment that does occur, a complaining employee is not adversely affected without consulting with the employee and without his/her consent.
- Should a CHRO representative show up at the workplace for an inspection, all employees should be instructed to cooperate fully.