- The past five years has seen a growing stream of new employment laws relating to sexual assault and harassment following the outcry by the #MeToo movement, with the most significant impact being seen in the US.
I am often asked as an employment lawyer in Los Angeles—not far from Hollywood—how employment laws have changed, and whether those changes are impactful, after the social protest and media flurry of the #MeToo movement that erupted with public disclosures of Harvey Weinstein’s atrocities.
Making changes in California
The past five years has brought a growing stream of new employment laws relating to sexual assault and harassment with the most significant impact in the US, and commitments for new workplace laws and protections throughout the world.
One early change in the US, as part of the federal income tax overhaul effective December 2017, was the elimination of a federal income tax deduction for payments made to settle sexual harassment or assault claims that include a nondisclosure obligation. Upping the price of confidentiality for US employers is impactful.
California then adopted a series of laws that have significantly impacted the handling of workplace harassment complaints. In 2018, California enacted a law requiring employers with five or more employees to provide biennial harassment prevention training to their full workforce and train new employees within six months of hire. Two hours of training is required for every manager. In 2019, the statute of limitation (in other words, the deadline) for filing civil court claims of sexual assault was increased to ten years or three years from discovery of the wrongdoing, whichever is later. Effective 2020, the California legislature also extended the deadline to three years (from one year) to file administrative claims for harassment, discrimination, and retaliation pursuant to the Fair Employment and Housing Act 1959 (FEHA), the state analogue to the US federal anti-discrimination law, Title VII. With the required two-step process of filing claims initially with a governmental agency before filing court claims, a person who experiences harassment in California has much longer to speak up, particularly in cases of sexual assault.
Focusing on opportunity to speak up, the California Legislature in 2019 adopted a law that outright prohibits the use of nondisclosure provisions in settlement agreements of sexual harassment and assault claims, except under limited circumstances and at the discretion of the employee. That change, governing an individual’s right to contract, embodies a statewide policy aiming to expose serial harassers like Harvey Weinstein and many others by restricting their ability to hide behind private settlements.
Then in 2021, California enacted a law requiring employment arbitration agreements expressly to exclude claims for sexual harassment and assault in order to be enforceable. The US Congress soon followed by amending the Federal Arbitration Action in July 2022 to invalidate arbitration agreements altogether as to sexual harassment and assault claims. Those changes prohibit US employers from privately adjudicating sexual harassment and assault claims, ensuring the right to a jury, public access to court records, and upping the cost to employers in what already may be the most litigious part of the world.
Global impetus
The #MeToo movement has had a global effect, but this has been different outside the US where the focus is mainly workplace violence and sexual assault. A largescale global impetus came with the adoption in 2021 of the Violence and Harassment Convention by the International Labour Organization, an agency of the United Nations setting international labour standards. The Violence and Harassment Convention, an international treaty, recognised ‘the right of everyone to a world of work free from violence and harassment, including gender-based violence and harassment’. Applying to public and private employers worldwide, it requires ratifying countries to adopt ‘national laws prohibiting workplace violence and taking preventive measures, as well as requiring employers to have workplace policies on violence’. The first nation formally to adopt the Convention was Uruguay, and as of 2022, it has been ratified by 22 states (including the UK), adding pressure on governments worldwide to recognise that fundamental workplace right.
The European Union followed in March 2022 by proposing new EU rules to combat violence against women and domestic violence that also would criminalise rape, genital mutilation and cyber violence or hatred. In 2018 and 2021, the French Parliament adopted laws prohibiting harassment on the streets and refining what amounts to sexual consent to buttress laws already in place making sexual harassment a criminal offence. There is a debate—primarily along generational lines— as to whether these protections and the #MeToo movement erode a French way of life.
In response to #MeToo and some highly public British sex scandals, the UK government issued a Tackling Violence Against Women and Girls Strategy in 2018, making a public commitment to increase workplace protections for harassment laws already in place. The announcement without tangible legislative action or programs to support it has drawn national criticism for the lack of concrete action.
Positive impacts
Have these legal changes and the awareness raised by the #MeToo movement been impactful in the workplace? In the US they have, and will continue to have, a positive effect in curtailing workplace harassment. With the emphasis on transparency, bad actors in the US face serious and expensive consequences and reputational harm.
While laws prohibiting workplace harassment were viewed in the past as an American cultural phenomenon, the exposure of social media and a wider recognition that fundamental human rights are at issue has extended the impact of #MeToo towards a worldwide consensus that no one should face violence and harassment at work.
Rebecca Torrey, founder of the Torrey Firm, part of the IR Global network (www.torreyfirm.com).
