Women are using the #MeToo campaign to speak up about the culture of sexual harassment that continues to aggrieve modern workplaces. Despite legislative and social reforms over the past 40 years, workplace sexual harassment is still pervasive. Employees endure workplace sexual harassment to protect their jobs and job opportunities. Employees do not know how to make a complaint and fear retaliation when they do.
Employers play a role in censuring victims of sexual harassment. Employers are requiring employees and prospective employees to sign, as a condition of employment, agreements to arbitrate future sexual harassment claims. Workers are told not to discuss sexual harassment when it happens to them. Employer investigations of complaints are conducted in secrecy. Agreements to settle sexual harassment claims routinely ban victims from ever again working for the employer or even talking about their claims for the rest of their lives.
Vermont Enhances Sexual Harassment Prevention Law
States are responding to #MeToo with legislative reform. Vermont’s “An Act Relating to the Prevention of Sexual Harassment (the Act)” enacted in July tackles sexual harassment on several fronts. The Act expands the protection of the law to unpaid interns and independent contractors. The Act prohibits employment agreements that would prevent an employee from disclosing sexual harassment incidents or that would require an employee to agree to arbitrate sexual harassment claims as a condition of employment. The Act requires sexual harassment settlement agreements to include specific statements preserving the individual’s rights and prohibits “no rehire” clauses. Enforcement agencies have more power to inspect employers and must develop new reporting tools. The Act also requires employers to post the newly-revised “Sexual Harassment is Illegal” notice in the workplace.
Specific terms of the Act are that it:
- Applies to all individuals engaged “to perform work or services”;
- Requires an employer to provide workers with a written copy of its sexual harassment policy upon hire and whenever the policy is revised;
- Encourages employers to conduct annual sexual harassment training for all workers;
- Prohibits an employer from requiring any worker or prospective worker, as a condition of employment, to sign an agreement that purports to waive a substantive or procedural right or remedy with respect to a sexual harassment claim;
- Prohibits employment agreements that prevent/restrict a worker from opposing, disclosing, reporting, or participating in an investigation of sexual harassment;
- Prohibits settlement agreements that would prohibit the employee from working for the employer or its related entities;
- Requires sexual harassment settlement agreements to contain specific statements preserving the individual’s right to lodge a complaint of sexual harassment with a state or federal agency, testify or participate in an official investigation, respond to discovery, concert with other workers, or exercise rights that arise after the agreement is executed;
- Grants the Attorney General or the Human Rights Commission to enter and inspect an employer’s place of business and records on 48 hours’ notice and, if necessary, require training to ensure the workplace is free from sexual harassment;
- Provides for a sexual harassment reporting hotline and web portal; and
- Will permit in certain circumstances voiding provisions of settlement agreements that prohibit the individual who made the claim from disclosing information about the claim.
What Vermont Employers Need to Do Now
Employers should review sexual harassment policies, revise as necessary and distribute copies to employees. Employers should ensure that any settlement agreement contain the required statements. Finally, employers should ensure they are compliant with the updated workplace posting requirement. If you already have a Vermont All-On-One™ Poster, you can comply by applying our 2018 Vermont Sexual Harassment Peel ‘N Post™ sticker to your All-On-One Poster.