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2023 #MeToo Workplace Anti-Harassment Reforms

Every year since #MeToo went viral in October 2017, state lawmakers have worked with new energy to reform workplace anti-harassment laws, which the outpouring of stories and experiences had revealed as outdated and ineffective. In 2023, we saw this momentum continue with around 80 bills targeted at strengthening protections against workplace harassment introduced and 9 states passing meaningful protections. Now six years since #MeToo went viral, 25 states and the District of Columbia have passed a total of more than 80 workplace antiharassment bills, many with bipartisan support.

During the 2023 legislative session, more states worked to fundamentally shift employers’ incentives to prevent harassment. For example, Colorado and Vermont tackled the harmful “severe or pervasive” standard established by federal courts for determining whether conduct constitutes unlawful harassment. This standard has been interpreted in unduly restrictive ways so that only the most egregious conduct qualifies, which places an unreasonably high burden on survivors who have experienced harassment at work and seek accountability in the courts. Underlying this reform is the understanding that we need to update our laws to ensure they reflect what most people now understand to be harassing and unacceptable conduct at work. With the passage of these two new laws, 5 states and the District of Columbia have updated their definitions of what constitutes illegal workplace harassment since 2017.

Legislation around nondisclosure agreements (NDAs), contractual agreements or clauses that prevent workers from disclosing specific types of information about the employer and/or workplace conditions, was the other largest state anti-harassment policy trend in 2023—as it has been every year since #MeToo went viral. Three states (Colorado, Rhode Island, and Virginia) passed reforms limiting the abusive use of NDAs, bringing the total number of states that have passed such reforms since #MeToo went viral to 18. Late in 2022, the federal government, spurred by state reforms, also took action to limit abusive NDAs, through the bipartisan Speak Out Act, which prohibits pre-dispute NDAs and non-disparagement agreements (typically agreements imposed upon workers at the time of hire as a condition of employment, or after hire as a condition of continued employment) to the extent they reach sexual harassment and sexual assault claims. In addition, the National Labor Relations Board ruled in McLaren Macomb that severance agreements containing confidentiality and nondisparagement provisions are typically unlawful under the National Labor Relations Act.

While these federal actions begin to address the harm that NDAs cause, they leave out many workers. The NLRB decision is not applicable to severance agreements provided to supervisors except in very limited circumstances, leaving out vast swaths of workers from the ruling. And the Speak Out Act does not limit the abusive use of NDAs in post-dispute settlements of sexual assault and sexual harassment claims. Moreover, by only providing protection against NDAs as they relate to sexual harassment and sexual assault, the Act leaves behind many workers who are disproportionately marginalized by harassment. Women of color, for example, who experienced harassment that involved both racial slurs and sexual comments would not be fully protected in speaking out about the full range of their experiences. Women of color and women with disabilities are especially likely to face harassment, and our antiharassment laws should fully protect against harassment based on race, national origin, and disability, in addition to that based on sex.

States can fill these gaps and are working to do so. In 2023, Colorado and Rhode Island passed legislation to limit NDAs that silence workers from speaking up about any type of civil rights violations (Rhode Island) or any discriminatory or unfair employment practices (Colorado), not just sexual harassment.

This supplemental report provides an overview of the progress that has been made in advancing workplace harassment reforms since the #MeToo Five Years Later: Progress & Pitfalls in State Workplace Anti-Harassment Laws report in October 2022.