Testimony of Maya Raghu
Director of Workplace Equality & Senior Counsel
National Women’s Law Center
Regarding Legislation to Address Workplace Harassment
Submitted to the Oregon State Legislature, Senate Workforce Committee
January 22, 2019
Thank you for the opportunity to submit this testimony on behalf of the National Women’s Law Center regarding the need for workplace anti-harassment legislation in Oregon. The National Women’s Law Center (NWLC) has been working since 1972 to secure and defend women’s legal rights, and has long worked to remove barriers to equal treatment of women in the workplace, including harassment and discrimination.
We appreciate your efforts to address the problem of workplace harassment, including through this hearing and the introduction of Bill LC 1170. LC 1170 is an important step forward in the effort to prevent and respond to workplace harassment, and to empower survivors and improve accountability through a multi-faceted approach. We urge you to give serious consideration to our recommendations for further clarifying and strengthening the bill.
We hope that these steps are only the first of many, and that as you move forward, you implement systemic, sustainable reforms that will benefit Oregon’s workforce.
I. WORKPLACE HARASSMENT REMAINS A SUBSTANTIAL BARRIER TO INDIVIDUALS’ ABILITY TO WORK WITH EQUALITY, RESPECT, AND SAFETY.
Since #MeToo went viral fifteen months ago, increasing numbers of individuals who have experienced sexual harassment or assault at work have come forward to disclose their experiences. Many of these individuals remained silent for years because the risks of speaking out were too high. With good reason, many feared losing their jobs or otherwise hurting their careers, feared not being believed, and believed that nothing would be done about the harassment. Moreover, the laws and systems in place designed to address harassment were inadequate to provide redress and justice, and instead subjected victims to additional devastating economic, physical, and psychological consequences, while protecting offenders.
The public engagement on the issue of harassment over the last fifteen months is unprecedented. Nearly every type of industry is grappling with the problem of harassment and seeking solutions. Conversations from boardrooms to community centers are also naming the link between harassment, discrimination, and broader workplace and cultural power dynamics.
But workplace harassment is not a new phenomenon. Despite laws at the federal, state, and local levels prohibiting harassment in the workplace, it continues to be a widespread problem, affecting workers in every state, in every kind of workplace setting and industry, and at every level of employment. In Federal Fiscal Year 2018, the U.S. Equal Employment Opportunity Commission (EEOC) received over 554,000 calls and emails and handled over 200,000 inquiries concerning potential workplace discrimination claims. In FY 2018, approximately 27,000 harassment charges were filed with the EEOC; nearly one-quarter of those charges alleged sexual harassment. The rates of workplace harassment, particularly sexual harassment, are likely much higher than the data suggests. Approximately three out of four individuals who experience harassment never talked to a supervisor, manager, or union representative about the harassing conduct.3 Moreover, retaliation remains a significant problem, and continues to be the leading basis of charges filed with the EEOC. Too many people are still afraid to speak up, to challenge and report harassment, assault and discrimination because of the threat to their jobs, reputations, careers, and safety.
Since the Time’s Up Legal Defense Fund, housed and administered by the National Women’s Law Center Fund, was launched on January 1, 2018, it has received nearly 4,000 requests for assistance, with almost 50 requests from individuals in Oregon related to workplace sex discrimination. The vast majority of these requests for help involved workplace sexual harassment and related retaliation. Over one-third of those complaints are from Oregon workers in male-dominated fields like construction, and service industries like food services and retail. Of those who reached out, over 70 percent identified as low-income. The data from Oregon is consistent with the trends nationwide.
These requests for assistance have confirmed several important conclusions. First, while workplace sexual harassment and retaliation are widespread and persistent, the incidence of harassment is higher in workplaces with stark power imbalances between workers and employers. For example, workplace harassment is more common in industries that have traditionally excluded women, including both blue collar jobs like construction, and white collar ones like medicine and science. Women working in industries with a high proportion of low-wage jobs, such as food service, hospitality, and agriculture, also experience high incidences of sexual harassment.
The requests for assistance have also confirmed that sexual harassment often occurs along with other forms of sex discrimination – including pay discrimination and pregnancy discrimination. It also occurs at the intersections of identities, with many women experiencing harassment based on their race and sex combined,6 or their national origin and sex, or their disability and sex.
While drawing new public attention to and awareness of sexual harassment, #MeToo also has highlighted the different ways harassment and discrimination create and perpetuate systemic barriers to equality and opportunity in our institutions and our culture, particularly for women of color and other vulnerable people. Workplace harassment and discrimination based on race, disability, color, religion, age, or national origin all undermine workers’ equality, safety and dignity, and are no less humiliating. Accordingly, any policy response must be intersectional and address the multiple forms of workplace inequality individuals face. We commend Oregon advocates and champions for ensuring that LC 1170 addresses not only sexual harassment, but all forms of workplace discrimination covered by Oregon law. This approach serves as an important model for other states considering legislative reform.
Moreover, systemic problems require systemic reforms and solutions. Current law has encouraged employers to see harassment as a collection of isolated incidents, instigated by a few bad actors, instead of as a structural and cultural problem. The incentive is for businesses to wait for problems and complaints to arise, and then react to them; and to treat high-profile cases as public relations crises to be managed. Such an approach prevents employers from becoming aware of, or taking action to address, recurrent issues. It also can lead to a lack of accountability, particularly for powerful harassers, which has a chilling effect and can prevent victims from coming forward. An effective response to harassment will encourage companies to move from a reactive to a proactive approach that is focused on preventing harassment and discrimination in the first instance. Accordingly, we are encouraged by the provisions in LC 1170 promoting prevention and accountability.
II. STATES AND CITIES ARE LEADING THE WAY ON CRITICAL WORKPLACE HARASSMENT LEGAL REFORMS.
The outpouring of stories since #MeToo went viral has catalyzed significant reform in states and cities across the country. Since October 2017, state and local legislators have introduced over 100 bills to strengthen protections against workplace harassment. By October 2018, 11 states had enacted some of these measures into law; most addressed sexual harassment in particular.
These reforms fell into four broad categories. The first category of reforms seek to strengthen and expand protections for more workers, for example, by extending protection to independent contractors and interns, and individuals working for small companies. The second category of legislation, which saw a significant amount of interest from policymakers, addresses employer-imposed secrecy and increased transparency by limiting the use of non-disclosure agreements at time of hire and in settlement agreements, and the use of forced arbitration for harassment claims. A third category of reforms sought to address barriers to victims’ access to justice, and to increase accountability for employers. Some jurisdictions chose to extend the statute of limitations for filing a complaint; others sought to increase or lift the caps on compensatory and punitive damages, so that victims’ ability to be made whole is tied to their harm and not the size of their employer or a statutory limit; and some legislation addressed standards for holding employers accountable for employees’ harassing conduct. Finally, several jurisdictions enacted measures aimed at promoting prevention of workplace harassment and discrimination, by variously mandating that employers have anti-harassment and anti-discrimination policies, or conduct training or climate surveys.
While the measures that state and local lawmakers introduced and passed by no means represent the complete universe of necessary legal reforms, they address some of the most significant gaps in the law and pressing needs. We expect to see continued action and progress on these issues in the months ahead.
III. MEASURES LIKE LC 1170 HELP INCREASE TRANSPARENCY, ACCOUNTABILITY, AND ACCESS TO JUSTICE, AND PROMOTE PREVENTION.
Legislation like LC 1170, which couples action on a variety of important issues — such as addressing all forms of workplace discrimination, limiting non-disclosure agreements, and extending the statute of limitations — with prevention measures, is critical and can serve as a model for other states.
A. Legislation must prohibit employers from imposing non-disclosure and non-disparagement agreements (NDAs) as a condition of employment.
Individuals often accept employment at a company without knowing if discrimination and harassment are particular problems at that workplace. Too frequently, employers impose on new hires, as a condition of their employment, contractual provisions that prevent workers from publicly disclosing details of these worker rights violations. These contractual provisions can mislead workers as to their legal rights to report to civil rights or criminal law enforcement agencies and to speak with co-workers about employment conditions. They can also prohibit workers from publicly telling their story, which in turn makes it less likely that other victims of harassment will be emboldened to speak out and hold their employers accountable.
By prohibiting employers from forcing workers to agree to NDAs that waive their rights to discuss workplace harassment and discrimination, this bill would lift the veil of secrecy that enables predatory behavior, and would protect workers’ rights to speak with enforcement agencies and act collectively to challenge harassment and discrimination. If LC 1170 is enacted, Oregon would join California, Maryland, Tennessee, Vermont, and Washington state, all of which recently enacted legislation prohibiting employers from requiring workers to sign non-disclosure or non-disparagement agreements as a condition of employment.
B. Settlement agreements should not prevent workers from speaking out about harassment or discrimination.
Non-disclosure and non-disparagement clauses in settlement agreements present a slightly different dynamic. NDAs in settlement agreements can prevent victims from speaking out publicly about the harassment or discrimination, the fact of a legal dispute and the settlement of that dispute, the settlement terms, or the identity of the parties. Here too, secrecy can help hide the true extent of discrimination and harassment at a workplace, shield a serial harasser from accountability, and have the effect of preventing other victims from coming forward.
Nonetheless, the promise of mutual non-disclosure as to some or all aspects of the settlement can provide victims with useful leverage in settlement negotiations. A policy banning all non-disclosure agreements in settlement agreements would take power away from victims, and could make employers less likely to settle claims of harassment, forcing victims to take up the difficult, expensive, and time-consuming task of pursuing legal claims in court in order to obtain any relief.
The approach adopted by LC 1170, which permits NDAs in settlement agreements “at the request of the employee claiming to be aggrieved by discrimination,” appropriately seeks to balance these interests. Several other states have recently enacted similar restrictions on NDAs in settlement agreements, including California and New York. However, we are concerned that the current language in LC 1170 provides no meaningful protection against an employer coercing a worker into “requesting” an NDA that they otherwise might not want. Accordingly, we offer recommendations in Section IV below for ensuring that allowing workers to request NDAs in settlement agreements does not become a loophole rendering this protection ineffective.
C. Individuals who report workplace harassment should not be penalized with limited employment opportunities, nor should harassers be rewarded for their misconduct.
LC 1170 also bans “no-rehire” clauses in settlement or separation agreements. Employers may include no re-hire clauses in settlement agreements for a variety of reasons, but in the context of workplace harassment or discrimination, these clauses can amount to punishment or retaliation against the worker for speaking up about violations.15 As a result, they can also have a chilling effect on reporting. Moreover, given that no re-hire clauses often extend to a company’s parent and affiliates, a no-rehire provision can significantly impede a worker’s ability to obtain a new job, particularly in specialty industries, or a community or state where a single company provides most of the jobs in the industry. Last year, Vermont enacted legislation prohibiting no re-hire clauses in the context of harassment settlements for many of these same reasons.
At the same time, employers should not reward those who have been found to have engaged in unlawful discrimination or harassment. Media reports provide recent examples of companies offering high-profile or powerful individuals significant payments when exiting their jobs after being found to have engaged in harassment or discrimination, sometimes in multiple instances. These payments can undermine accountability, because they diminish any meaningful consequences faced by the wrongdoer. LC 1170’s measure allowing companies to void agreements granting severance or separation payments to executives who engage in harassment or discrimination is an important step towards promoting accountability.
D. Extending statutes of limitations can promote workers’ ability to access justice.
Short statutes of limitations can hamper the ability of individuals to bring harassment or discrimination complaints. Many victims do not come forward immediately, or even within months, to report, either due to the fear of retaliation and job loss, or as a result of the trauma they are experiencing. Additionally, many workers do not have the resources to easily find and consult with advocates or attorneys about their rights and legal options. For example, many people have felt empowered by the MeToo movement to seek information or assistance from the Times Up Legal Defense Fund, only to find that they have run out of time and no longer have legal options.
Accordingly, we applaud LC 1170’s proposal to extend the statute of limitations from one year to seven years, both to file an administrative complaint for unlawful employment discrimination with the Oregon Bureau of Labor and Industries, and to file a civil action for unlawful employment discrimination. By enacting this provision, Oregon will serve as a model for states across the country seeking to strengthen access to justice for workers.
E. Individual liability provides workers with additional avenues for redress for workplace harassment and discrimination.
Under Title VII, it is an employer’s legal duty to protect workers from discrimination, including harassment based on protected characteristics. Federal courts have interpreted this to mean that only businesses or organizations, and not individuals, may be held liable pursuant to Title VII. While an employer may take action to discipline, fire, or otherwise penalize the harasser, federal law does not permit victims to hold individual harassers—whether a supervisor, co-worker, client, or customer—directly and personally accountable for discrimination and harassment. As a result, if an employer chooses not to take action against a harasser, the harasser may suffer no consequences for his or her behavior.
Over the last several years, many states have taken action to provide for individual liability for harassment or discrimination.18 Individual liability in no way diminishes an employer’s duty to maintain a work environment free from discrimination and harassment. Rather, individual liability can provide an additional avenue by which workers can hold wrongdoers accountable for their conduct and obtain redress.
LC 1170 importantly provides for individual liability for owners, presidents, partners, and corporate officers who engage in prohibited acts. This provision is an important step towards increasing accountability for these powerful individuals and for promoting workplace culture change. As the EEOC has noted, transforming workplace culture requires change to start at the top.19 The behavior of leadership sets company-wide expectations about acceptable conduct and consequences for violations.
F. Legislative reform should promote preventing harassment and transforming workplace culture.
Prevention should be a primary goal for employers in addressing workplace harassment. Harassment prevention ultimately requires changes in attitude and behavior, for which there is no short-term solution. Yet for businesses, investing in harassment prevention is not only the right thing to do, it is the financially advantageous thing to do: it helps employers avoid costly litigation, settlements, and higher insurance premiums, as well as attendant negative publicity and lower productivity.
While federal law has been interpreted to provide employers with an incentive to adopt sexual harassment policies and training, it has created a situation where employers effectively are able to shield themselves from liability by having any anti-harassment policy or training, regardless of quality or efficacy. Employer training and policies have been largely ineffective in preventing harassment in the first instance in part because they are not mandatory, and because they are focused on mere compliance with the law.
In response, over the past year, California, Delaware, Illinois, Maryland, New York state, and Vermont all enacted reforms to prevent workplace harassment, including mandating policies and training, and in some cases, mandating content for anti-harassment trainings.
LC 1170 Section 4’s requirement that all employers implement a policy containing procedures and practices for the reduction and prevention of discrimination, and requiring the Bureau of Labor and Industries to provide model procedures or policies, is a crucial component of effective prevention. Oregon would join Illinois, New York state, Vermont, and Washington state, which passed legislation requiring public or private employers to have anti-harassment policies, or directing state agencies to develop model policies for broader use. However, this provision of LC 1170 can be strengthened in several ways. We hope the legislature will consider the recommendations we offer below in Section IV.
Furthermore, LC 1170’s provision making it an unlawful employment practice for any person to aid, abet, incite, compel, coerce or conceal unlawful discrimination is also critical to promote prevention and address the culture of silence around these issues. As the EEOC noted in its 2016 report, preventing and stopping workplace harassment requires every individual in the workplace to play a role in transforming workplace culture.30 This provision helps achieve that goal, by holding all workers accountable for contributing to impunity for workplace harassment and discrimination.
IV. LC 1170 could be strengthened in several crucial ways.
We urge the legislature to strengthen this bill in several important ways, to ensure it will effectively protect workers and prevent harassment and discrimination.
First, extend the limits on NDAs to other employment and labor law violations. We urge the legislature to extend the protections set forth in LC 1170 to NDAs that prevent workers from speaking up about other employment and labor violations, in addition to harassment and discrimination. Violations of employment and labor laws, such as wage and hour laws, deepen the power imbalances between workers and their employers, and leave workers more vulnerable to harassment and discrimination. We must ensure that workers can speak up about all workplace abuses that undermine their economic and physical security.
Second, we urge you to ensure that the exception to the ban on NDAs in settlements does not become a significant loophole that undercuts the protections this bill provides.While we applaud the bill’s approach – to avoid banning NDAs in the settlement context completely, and to restore power to individuals to request confidentiality – we are concerned that the bill will not, in practice, result in empowering individuals to make informed choices. The bill’s provision that the prohibition on NDAs in settlement agreements will not apply if “entered into at the request of an employee” provides no meaningful protection against an employer coercing an employee into “requesting” an NDA that they otherwise might not want. Given the inherent power imbalances between employer and employee—imbalances that are often magnified in the settlement context, especially when an individual may be dealing with trauma or is not represented by counsel—we are concerned that the bill as drafted may still permit employers to continue to unduly push workers into silence. In light of these concerns, we encourage the legislature to consider amendments to LC 1170 to address the power dynamic in the settlement negotiation context, including:
- Ensuring that workers who breach an NDA are not subject to additional monetary damages. Individuals should not be subject to monetary damages for breaching an NDA. Low-wage workers in particular often suffer significant economic hardship as a result of workplace violations and related retaliation, hardships that would be compounded by the harsh monetary penalties they would face for breaching an NDA provision. New Jersey is currently considering a bill31 that would allow NDAs in settlement agreements, but would prohibit penalizing individuals for breaking an NDA. Additionally, if an employee publicly discloses details about the claim against the employer, such that the employer becomes identifiable, the NDA would no longer be enforceable against either the employee or the employer.
- Ensuring that an agreement to keep a settlement confidential should provide a reasonable economic or other benefit to the individual that is on par with the benefit to the employer.
- Clarifying existing rights. The legislation should specify that non-disclosure clauses in settlement agreements cannot explicitly or implicitly limit an individual’s ability to provide testimony or evidence, file claims or make reports to any federal or state enforcement agency, such as the EEOC, Department of Labor, or state counterpart; nor can they prevent an employee from providing testimony or evidence in state or federal litigation, including class or collective actions, against the employer. Vermont, for example, now requires that settlements of sexual harassment claims clearly include an explanation that an NDA does not prohibit the worker from filing a complaint or participating in an investigation with state or federal agencies, such as the EEOC, or using collective action to address worker rights violations.
- Including a timing provision to ensure informed decisions. Providing a specific time period for individuals to review and execute a settlement agreement with an NDA can help ensure informed consent. For example, New York state passed a law last year prohibiting employers from including NDAs in settlement agreements involving sexual harassment claims, unless the individual requests confidentiality. The legislation provides that if NDAs are included, the individual must first be given twenty-one days to consider the terms, and then at least seven days following execution to revoke the agreement. The agreement will not become effective or be enforceable until the revocation period has expired.
Third, consider extending Section 5 of LC 1170 – concerning the voidability of agreements requiring severance and separation payments to employees with executive authority – to violations of any provision of Oregon’s law against workplace discrimination. While we applaud the inclusion of this provision in LC 1170, as currently drafted it is not clear that Section 5 also would extend to agreements with individuals with executive authority who have violated Oregon’s prohibitions against workplace discrimination, as detailed in ORS 659A.030. To avoid an unduly narrow reading of this provision, we recommend editing the language in Section 5 by adding the text in italics:
“Any agreement entered into between an employer and an employee with executive authority that requires severance or separation payments is voidable by the employer if, after the employer conducts a good faith investigation, the employer determines that the employee violated section 2 or 3 of this 2019 Act or the policy adopted under section 4 of this 2019 Act, or any other violation of ORS 659A.030.”
Finally, ensure that mandated employer policies include key information and require all employees to undergo anti-discrimination training. LC 1170’s provision requiring employers to establish and disseminate a policy for the reduction and prevention of discrimination is an important reform. In order to ensure that this provision effectively achieves its stated goal, the legislature should consider incorporating the following into Section 4:
- Policies and procedures should include information about how to report harassment and discrimination, with multiple avenues for making a report, an explanation of how complaints will be promptly and thoroughly investigated and addressed, and strong policies against retaliation.
- Require all employers to conduct training for all employees, including managers and supervisors, to ensure effective implementation of required anti-harassment and anti-discrimination policies and procedures. Training should help employees and supervisors recognize discrimination and harassment in the context of their specific workplace, and understand their rights and responsibilities.
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Thank you for the opportunity to provide testimony on this critical issue and for your consideration of our recommendations. We commend Oregon’s important efforts to enact the reforms that are needed to ensure that everyone can work with equality, dignity, and safety. I ([email protected]) and my colleagues, Andrea Johnson, Senior Counsel for State Policy ([email protected]) and Ramya Sekaran, Workplace Justice Fellow ([email protected]) are happy to serve as a resource as you continue to evaluate this legislation.