Arizona

Cover more employers: (2022) enacted legislation lowering the employer-size threshold to one or more employees for claims alleging sexual harassment or retaliation for alleging, reporting, or testifying about sexual harassment. The legislature retained the 15-or-more employees requirement for other forms of discrimination. The law was signed by the Governor on April 22, 2022.[i]  

Limit Nondisclosure Agreements (NDAs): (2018) enacted legislation to allow an individual who is bound by an NDA to break the NDA if asked about criminal sex offenses by law enforcement or during a criminal proceeding. The legislation also prohibits public officials from using public funds to enter into a settlement with an NDA related to sexual assault or sexual harassment.[ii]

 

California

Limit Nondisclosure Agreements (NDAs): (2018) enacted legislation to prohibit employers from requiring an employee to sign, as a condition of employment or continued employment, or in exchange for a raise or a bonus, a release of a claim or a right, a nondisparagement agreement, or other document that prevents the employee from disclosing information about unlawful acts in the workplace, including sexual harassment. The law clarifies that these provisions do not apply to NDAs or releases in settlement agreements that are voluntary, deliberate, and informed, and provide consideration of value to the employee, and where the employee was given notice and opportunity to retain an attorney or was represented by an attorney.[iii]

California also enacted legislation to prohibit confidentiality provisions in settlement agreements that prevent the disclosure of factual information related to claims of sexual assault, sexual harassment, or other forms of sex-based workplace harassment, discrimination, and retaliation filed in a civil or administrative action. Claimants can request a confidentiality provision to protect their identity, unless a government agency or public official is a party to the settlement agreement. This prohibition does not apply to confidentiality provisions regarding the amount paid under a settlement agreement.[iv]

(2021) passed the Silenced No More Act, which clarifies that employers may not use nondisparagement agreements or nondisclosure agreements to prevent an employee from discussing factual information related to a claim for workplace harassment or discrimination, whether or not the harassment or discrimination is based on sex.[v]

Prohibit no-rehire provisions: (2019) enacted legislation to prohibit no-rehire provisions in agreements to settle employment disputes that prevent an employee who has filed a claim against the employer from working again for the employer, or any parent company, subsidiary, division, affiliate, or contractor of the employer. The new law does not prohibit, however, the employer from including a no-rehire provision in a settlement with an employee if the employer has made a good faith determination that the employee engaged in sexual harassment or sexual assault.[vi]

Stop forced arbitration: (2019) enacted legislation providing that applicants or employees cannot be forced to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (FEHA) or other specific statutes governing employment. The law prohibits employers from threatening, retaliating or discriminating against, or terminating any applicant or employee for refusing to consent to waiving any right, forum, or procedure for a violation of any provision of the FEHA.[vii] Note: In 2020 a federal district court enjoined California from enforcing this law on the basis that it is preempted by the Federal Arbitration Act. That decision has been appealed to the 9th Circuit.[viii]

Protect those who speak up from defamation lawsuits: (2018) enacted legislation amending their “anti-SLAPP” law to include among communications that cannot be subject to a defamation lawsuit complaints of sexual harassment made by an employee, without malice, to an employer based on credible evidence as well as communications between the employer and interested persons regarding a complaint of sexual harassment. The legislation also authorizes an employer to answer, without malice, whether the employer would rehire a former employee and whether a decision to not rehire is based on the employer’s determination that the employee engaged in sexual harassment.[ix]

Limit use of public funds in settlements: (2019) enacted legislation prohibiting the use of campaign legal defense funds and campaign funds to pay or reimburse a candidate or elected officer for a penalty, judgment, or settlement related to a claim of sexual assault, sexual abuse, or sexual harassment.[x]

Extend statute of limitations: (2019) enacted legislation to extend from one to three years the statute of limitations for filing employment discrimination complaints with the Department of Fair Employment and Housing.[xi]

(2021) updated the Fair Employment and Housing Act (FEHA) to clarify that the time for filing a civil action for a violation of existing anti-discrimination laws is tolled while the Department of Fair Employment and Housing (DFEH) conducts its investigation. The statute of limitations is tolled until DFEH files a related lawsuit or one year after DFEH notifies the complainant that the department has declined to bring suit. The new law also tolls the statute of limitations to file a civil suit during mandatory or voluntary mediation.[xii]

Revise “severe or pervasive” standard: (2018) enacted legislation to clarify the “severe or pervasive standard.” The law states that a single incident of harassment is sufficient to create a hostile work environment if the harassment has unreasonably interfered with the employee’s work performance or created an intimidating, hostile or offensive working environment. Moreover, a victim need not prove that their productivity declined due to the harassment; it is sufficient to prove that the harassment made it more difficult to do the job. Additionally, the new law clarifies that a court must consider the totality of the circumstances in assessing whether a hostile work environment exists and that a discriminatory remark may contribute to this environment even if it is not made by a decision maker or in the context of an employment decision. Courts are to apply these standards to all workplaces, regardless of whether a particular occupation has been historically associated with a higher frequency of sexually related comments and conduct than other occupations.[xiii]

Require anti-harassment training: (2018) California which previously only required employers with 50 or more employees to provide sexual harassment training to supervisory employees once every two years, enacted legislation expanding the requirement so that employers with five or more employees are now required to provide at least two hours of interactive sexual harassment training and education to all supervisory employees, and at least one hour of such training to all nonsupervisory employees in California within six months of their assumption of a position, by January 1, 2021. After January 1, 2021, employers must provide the required training to each employee once every two years.[xiv]  California also enacted legislation that authorizes, but does not require, employers to provide bystander intervention training.[xv]

(2018) enacted legislation requiring the state to curate, with the input of a training advisory committee, a list of qualified organizations and peer trainers to provide the anti-sexual harassment training required of janitorial service employers. The training advisory committee is required to include representatives from a collective bargaining agent that represents janitorial workers and sexual assault victim advocacy groups. Employers are also required to submit a report confirming training completion to the state.[xvi]

Require notice of employee rights: (2018) enacted legislation to require employers to post or otherwise share with employees information about employees’ rights to be free from sexual harassment.[xvii]

 

Colorado

Protect more employees: (2022) expanded the definition of “employee” under the Colorado Anti-Discrimination Act (CADA) to include individuals in domestic service.[xviii]

Extend statute of limitations: (2022) amended the Colorado Anti-Discrimination Act (CADA) to extend the statute of limitations for filing a discrimination claim from 180 days to 300 days.[xix]

 

Connecticut

Cover more employers: (2022) enacted legislation extending protections against discrimination to all employers, regardless of size. Previously, Connecticut’s anti-discrimination law only covered employers with three or more employees.[xx]

Extend statute of limitations: (2019) enacted legislation to allow employees who have been subjected to discrimination, including harassment, 300 days to submit a complaint to the Connecticut Commission on Human Rights and Opportunities where previously they had only 180 days.[xxi]

Increase damages available to victims: (2019) enacted legislation permitting a court to award punitive damages to a victim of employment discrimination, overturning a Connecticut Supreme Court ruling disallowing such damage awards. Uncapped compensatory and punitive damages are now available.[xxii]

Require anti-harassment training: (2019) Connecticut, which previously only required employers with 50 or more employees to train supervisory employees, enacted legislation to require all employers with three or more employees to provide sexual harassment training to every employee and to require those with fewer than three employees to provide training to supervisory employees. Employers must also provide employees with supplemental training at least every 10 years. The Connecticut Commission on Human Rights and Opportunities is required to create and make available at no cost to employers an online training and education video or other interactive method of training that fulfills these requirements.[xxiii]

Require anti-harassment policy: (2019) enacted legislation to require an employer to either provide its employees, within three months of their start date, with a copy of its sexual harassment policy via email, or to post the policy on their website and provide employees with a link to the Connecticut Commission on Human Rights and Opportunities’ sexual harassment website.[xxiv]

Strengthen anti-retaliation protections: (2019) passed a law prohibiting an employer from relocating an employee, assigning them to a different work schedule, or making any other substantive changes to their employment in response to the employee reporting sexual harassment, unless the employee agrees in writing.[xxv]

 

Delaware

Protect more workers: (2018) enacted legislation to expand employees covered by its sexual harassment protections to include state employees, unpaid interns, applicants, joint employees, and apprentices.[xxvi]

Ensure employer liability for supervisor harassment: (2018) enacted legislation to hold employers responsible for sexual harassment by supervisors when the sexual harassment negatively impacts the employment status of an employee. A supervisor includes any individual who is empowered by the employer to take an action to change the employment status of an employee or who directs an employee’s daily work activities.[xxvii]

Require anti-harassment training: (2019) enacted legislation to require employers with 50 or more employees to provide interactive sexual harassment prevention training and education to employees and supervisors within one year of beginning employment and every two years thereafter. Employers are required to provide additional interactive training for supervisors addressing their specific responsibilities to prevent and correct sexual harassment and retaliation.[xxviii]

Require notice of employee rights: (2018) enacted legislation to require employers to post or otherwise share with employees information about employees’ rights to be free from sexual harassment.[xxix]

 

District of Columbia

Protect more workers: (2022) enacted legislation that amended the definition of “employee” to include independent contractors so that independent contractors are also protected against discrimination in the workplace.[xxx]

Revise “severe or pervasive” standard: (2022) enacted legislation to strengthen protections against workplace harassment, including by redefining harassment and sexual harassment to disavow the severe or pervasive standard. The new definitions also include factors, derived from federal case law, including the frequency and duration of the conduct, that factfinders should consider when determining whether unlawful workplace harassment took place.[xxxi]

Require anti-harassment training: (2018) enacted legislation to require employers who employ tipped workers to provide sexual harassment training in person or online within 90 days of an employee’s start date. Managers, owners, and business operators must undergo the training in person every two years.[xxxii]

Require transparency about sexual harassment claims: (2022) enacted legislation requiring District government agencies to collect data about the volume of employee sexual harassment complaints and the outcomes of such complaints, including the amounts of settlements involving the agency. The law also requires the Office of Human Rights to compile and submit an annual report to the Council and Office of the Attorney General regarding the data collected.[xxxiii]

 

Georgia

Strengthen anti-retaliation protections: (2022) passed legislation making it illegal for a county or city employer to retaliate against an employee or anyone working in a similar capacity for opposing sexual harassment or making a report or filing a charge or participating in an investigation about sexual harassment.[xxxiv]

 

Hawai’i

Limit Nondisclosure Agreements (NDAs): (2020) enacted legislation prohibiting employers from requiring employees, as a condition of employment, to enter into NDAs preventing them from disclosing or discussing sexual harassment or assault occurring in the workplace or at work-related events. It also prevents employers from retaliating against employees for reporting or discussing sexual harassment or assault.[xxxv]

(2022) enacted legislation prohibiting employers from entering into a nondisclosure agreement that keeps an employee from discussing workplace-related sexual harassment or sexual assault. This legislation expanded upon Hawai’i’s previous NDA law, which only prohibited employers from requiring employees to enter into an NDA as a condition of employment.[xxxvi]

 

Illinois

Protect more workers: (2019) enacted legislation to extend protections against all forms of harassment to contractors, consultants, and other individuals who are contracted to directly perform services for the employer.[xxxvii]

Cover more employers: (2019) enacted legislation extending protections against discrimination to all employers, regardless of size. Previously, Illinois’ workplace anti-discrimination law covered employers of all sizes for sexual harassment, pregnancy, and disability discrimination claims, but all other antidiscrimination protections extended only to employers with 15 or more employees.[xxxviii]

Limit Nondisclosure Agreements (NDAs): (2020) enacted legislation to render void any contract provision that would, as a unilateral condition of employment or continued employment, prevent employees or prospective employees from disclosing truthful information about discrimination, harassment, or retaliation. However, these contract provisions are allowed when they are a mutual condition of employment negotiated in good faith and the agreement is in writing; demonstrates actual, knowing, and bargained-for consideration from both parties; and acknowledges the employee’s right to report allegations to the appropriate government agency or official, participate in agency proceedings, make truthful statements required by law, and request and receive legal advice.

The legislation also prohibits an employer from unilaterally imposing such an NDA in a settlement or termination agreement, unless including such a provision is the documented preference of the employee and is mutually beneficial to both parties; the employer notifies the employee of their right to have an attorney review the settlement or termination agreement; there is valid, bargained for consideration in exchange for the confidentiality; the provision does not waive any future claims of harassment, discrimination, or retaliation; and the employee is given 21 days to consider the agreement and seven days to revoke the agreement.[xxxix]

Stop forced arbitration: (2019) enacted legislation to render void any provision that requires, as a condition of employment or continued employment, an employee or prospective employee waive, arbitrate, or diminish any claim of discrimination, harassment, or retaliation, unless the agreement is in writing; demonstrates actual, knowing, and bargained-for consideration from both parties; and acknowledges the employee’s right to report allegations to the appropriate government agency or official, participate in agency proceedings, make truthful statements required by law, and request and receive legal advice.[xl]

Require transparency about sexual harassment claims: (2019) enacted legislation to require every employer to disclose to the Department of Human Rights the total number of adverse judgements or rulings regarding sexual harassment or discrimination against it during the preceding year; whether any relief was ordered against the employer; and the number of rulings or judgements broken down by protected characteristic. This information will be published in an annual report available to the public, but the names of individual employers will not be disclosed. If the Department is investigating a charge of harassment or discrimination, it may request the employer provide the total number of settlements from the preceding five years relating to harassment or discrimination. Employers may not report the name of any victims of harassment or discrimination as part of these disclosures. These requirements remain in effect through January 1, 2030.[xli]

(2018) enacted legislation to require reporting of discrimination, harassment, sexual harassment, and retaliation claims involving executive branch employees, vendors and others doing business with state agencies in the executive branch, board members and employees of the Regional Transit Boards, and all vendors and others doing business with the Regional Transit Boards. The reports must be made publicly available on each office’s website.[xlii]

(2018) Illinois also enacted legislation requiring local governments, school districts, community colleges, and other local taxing bodies to report whenever they approve a severance agreement with an employee or contractor because the employee or contractor was found to have engaged in sexual harassment or discrimination. These reports must be made available on the internet and to the local press within 72 hours.[xliii]

Establish a helpline: (2018) enacted legislation requiring the Department of Human Rights to establish a sexual harassment and discrimination helpline to which individuals in public and private employment can report, including anonymously, and receive help with finding resources, including counseling services, and assistance in filing sexual harassment and discrimination complaints with the Department or other applicable agencies. The Department must annually report the number and type of calls received.[xliv]

Require anti-harassment training: (2019) enacted legislation to require the Department of Human Rights to produce a model sexual harassment prevention training program to be made available to employers and to the public online at no cost. The program must include an explanation of sexual harassment; examples of conduct that qualifies as sexual harassment; a summary of relevant state and federal provisions and remedies; and a summary of employers’ responsibility in preventing, investigating, and correcting sexual harassment. All private employers in the state must use this model or create their own program that equals or exceeds the model’s standards. Employers must provide this training at least once a year to all employees. Illinois also amended its sexual harassment training requirement for public employees to expand it to a “harassment and discrimination” prevention training.[xlv]

(2019) enacted legislation requiring bars and restaurants to provide supplemental, workplace-specific training beyond that which is required of all Illinois employers. The legislation also requires every bar and restaurant to have a sexual harassment policy and to provide the policy to all employees.[xlvi]  

(2018) enacted legislation requiring professions that have continuing education requirements to include at least one hour of sexual harassment prevention training in their continuing education requirements.[xlvii]

Require anti-harassment policy: (2018) enacted legislation to require companies bidding for state contracts to have a sexual harassment policy.[xlviii]

Require notice of employee rights: (2018) enacted legislation to require employers to post or otherwise share with employees information about employees’ rights to be free from sexual harassment.[xlix]

Panic buttons: (2019) Illinois enacted legislation requiring hotels and casinos to provide their employees with a safety or notification device to summon help in the event of a crime, sexual harassment, or sexual assault. These employers must also create an anti-sexual harassment policy, which must provide for among other things, temporary assignments and paid time off for employees who have made a complaint. The law also explicitly prohibits retaliation.[l] 

 

Louisiana

Limit Nondisclosure Agreements (NDAs): (2019) enacted legislation prohibiting settlements of workplace sexual harassment or sexual assault claims against the state that use public funds from containing an NDA preventing the claimant from disclosing the underlying facts and terms of the claims.[li]

Protect those who speak up from defamation lawsuits: (2020) enacted legislation providing that non-profit organizations cannot be held liable for disclosing to a prospective employer, in good faith, information about a former employee, volunteer, or independent contractor engaging in sexual harassment, assault, abuse, trafficking, or misconduct.[lii]

Require transparency about sexual harassment claims: (2018) enacted a law requiring each state agency to make available to the public every year the number of sexual harassment complaints received by the agency, as well as the number of complaints which resulted in a finding that sexual harassment occurred, the number which resulted in discipline or corrective action, and the amount of time it took to resolve each complaint.[liii]

Limit use of public funds in settlements: (2019) enacted legislation making state employees and elected officials found to have engaged in sexual harassment responsible for all or a portion of the amount of the settlement or judgment. The amount a state employee shall be responsible for depends on several factors including their ability to pay; whether they were performing their official duties at the time the harassment occurred; the severity of the harassment; and the stage of litigation.[liv]

Require anti-harassment training: (2018) enacted a law requiring each public employee and elected official to receive a minimum of one hour of sexual harassment training each year. Supervisors and employees designated to accept or investigate complaints must receive additional training. Each agency must also maintain public records of each employee and official’s compliance with the training requirement.[lv]

Require anti-harassment policy: (2018) enacted a law requiring each state agency to develop and institute a sexual harassment policy that, among other minimum requirements, contains a clear prohibition against retaliation and an effective complaint process that includes taking immediate and appropriate action when a complaint is received and details the process for making a complaint and alternative designees for receiving complaints.[lvi]

Require notice of employee rights: (2018) enacted legislation to require establishments that have been licensed by the state to serve or sell alcohol to distribute an informational pamphlet to their employees with information on identifying and responding to sexual harassment and assault.[lvii]

 

Maine

Limit Nondisclosure Agreements (NDAs): (2022) enacted legislation prohibiting employers from requiring employees to sign preemployment or employment contracts waiving any right to report or discuss unlawful employment discrimination. For settlement, separation, or severance agreements, the law allows NDAs that prevent the disclosure of factual information relating to employment discrimination only if the agreement expressly provides for separate monetary consideration for the NDA, the NDA applies to all parties to the agreement; the agreement states the employee retains the right to report, testify, or provide evidence to state or federal enforcement agencies or courts, and the employer retains a copy of the agreement for six years.[lviii]

 

Maryland

Protect more workers: (2019) enacted legislation to extend discrimination and harassment protections to independent contractors and the personal staff of elected officers.[lix]

Cover more employers: (2019) enacted legislation to extend protections from all forms of harassment to all employers, regardless of the employer’s size.[lx]

Limit Nondisclosure Agreements (NDAs): (2018) enacted legislation to make unlawful NDAs and other waivers of substantive and procedural rights related to sexual harassment or retaliation claims in an employment contract or policy. The law also protects employees from retaliation for refusing to enter into such an agreement.[lxi]

Stop forced arbitration: (2018) enacted legislation to render void, except as prohibited by federal law, any provision in an employment contract, policy, or agreement that waives any substantive or procedural right or remedy related to a future claim of sexual harassment or retaliation for reporting sexual harassment.[lxii]

Require transparency about sexual harassment claims: (2018) enacted legislation to require employers with 50 or more employees to complete a survey from the Maryland Commission on Civil Rights on the number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee; the number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment; and the number of sexual harassment settlements that included a provision requiring both parties to keep the terms of the settlement confidential. The aggregate number of responses from employers for each category of information will be posted on the Maryland Commission on Civil Rights’ website. The number of times a specific employer paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment will be retained for public inspection upon request. Employers are required to submit these surveys by July 1, 2020, and July 1, 2022.[lxiii]

(2018) Another new law requires each unit of the executive branch of the state government to submit information about its sexual harassment policies and prevention training and a summary of sexual harassment complaints filed, investigated, resolved, and pending in an annual report to the state Equal Employment Opportunity Coordinator and the Maryland Commission on Civil Rights.[lxiv]

Extend statute of limitations: (2019) enacted legislation to extend the statute of limitations for filing workplace harassment claims with the Commission on Human Relations from six months to two years, and from two years to three years for filing workplace harassment claims in court.[lxv]

(2022) enacted legislation providing that the statute of limitations for an employee to bring an anti-discrimination lawsuit in court is tolled for the period during which an employee’s discrimination charge is pending with an administrative agency.[lxvi]

Revise “severe or pervasive” standard: (2022) passed legislation updating the definition of “harassment.” Under the bill’s new standard, survivors would have to show that “based on the totality of the circumstances, the conduct unreasonably creates a working environment that a reasonable person would perceive to be abusive and hostile.”  Moreover, the law specifically states that the conduct need not be “severe or pervasive” to rise to level of being illegal harassment.[lxvii] 

Ensure employer liability for supervisor harassment: (2019) enacted legislation to make employers liable for harassment by individuals who have the power to make decisions regarding employees’ employment status or by those who direct, supervise, or evaluate employees. An employer is also liable if its negligence led to the harassment or allowed the harassment to continue.[lxviii]

Require anti-harassment training: (2018) enacted legislation requiring all state employees to complete at least two hours of in-person or virtual, interactive training on sexual harassment prevention within six months of hire and every two years thereafter. Additional training is required for supervisors.[lxix]

 

Nevada

Limit Nondisclosure Agreements (NDAs): (2019) enacted legislation to render void and unenforceable provisions in settlement agreements that prevent a party from disclosing factual information relating to a civil or administrative action for a felony sexual offense, sex discrimination by an employer or a landlord, or retaliation by an employer or landlord for reporting sex discrimination. The law also prohibits courts from entering an order that would prevent disclosure of this information. The amount of a settlement agreement may still be kept confidential and claimants can request a confidentiality provision to protect their identity, unless a government agency or public official is a party to the settlement agreement.[lxx]

(2021) limited employers’ use of NDAs by enacting legislation to render both contract and settlement provisions void and unenforceable if the provision restricts a party from testifying at a judicial or administrative proceeding related to the other party’s commission of a criminal offense, sexual harassment, discrimination, or related retaliation.[lxxi]

Extend statute of limitations: (2021) enacted legislation to expand protections for employees who report workplace problems internally and to clarify that the filing of a complaint with the Nevada Equal Rights Commission or the Equal Employment Opportunity Commission tolls the limitations periods to bring a lawsuit under Title VII or state law.[lxxii]

Increase damages available to victims: (2019) enacted legislation allowing victims of employment discrimination to be awarded the same remedies as available under federal law, which includes compensatory and punitive damages, capped based on the employer size. Previously Nevada’s anti-discrimination law had only allowed victims to recover two years of back pay and benefits and to be reinstated.[lxxiii] While this legislation increased the relief available under Nevada law by bringing it into line with the relief available under federal law, the damages available under Title VII are themselves in need of reform and the damage caps need to be removed.

Require anti-harassment training: (2021) passed legislation requiring the state government to develop a policy requiring training for all state executive employees on sex and gender-based harassment. The sexual harassment policy must outline requirements for sex and gender-based harassment training for employees and managers/supervisors.[lxxiv]

Require anti-harassment policies: (2021) enacted legislation requiring the state government to develop a policy on sex and gender-based harassment, including a definition of prohibited behavior, training requirements for all state executive employees on sex and gender harassment, training requirements for supervisors, and procedures for filing complaints. The legislation also created an internal agency responsible for investigating harassment complaints. The executive department must review and update the policy annually to ensure compliance with federal and state law.[lxxv]

Require notice of employee rights: (2021) enacted legislation requiring the state to provide all executive department employees with a copy of the harassment policy at the start of employment and when the policy is updated.[lxxvi]

 

New York

Protect more workers: (2019) expanded upon its 2018 legislation by passing legislation to ensure subcontractors, vendors, consultants, and others providing contracted services are protected not just from sexual harassment, but from all forms of discrimination in the workplace.[lxxvii]

(2018) enacted legislation to protect contractors, subcontractors, vendors, consultants, and others providing contracted services from sexual harassment in the workplace.[lxxviii]

Cover more employers: (2019) enacted legislation to extend protections against discrimination to all employers, regardless of the employer’s size. Previously, New York had only extended anti-sexual harassment protections to all employers regardless of size.[lxxix]

Limit Nondisclosure Agreements (NDAs): (2019) enacted legislation to render void and unenforceable any provision in an agreement between an employer and an employee or potential employee that prevents the disclosure of factual information related to discrimination, unless the provision provides notice that it does not prohibit the employee from speaking with law enforcement, the Equal Employment Opportunity Commission, a state division or local commission on human rights, or an attorney.[lxxx]

(2019) New York also enacted legislation to extend its 2018 law limiting NDAs in sexual harassment settlement agreements to more broadly limit NDAs in settlements relating to all discrimination claims. This legislation also added additional protections for complainants choosing to enter into an NDA, including requiring the provision be written in plain English and in the primary language of the employee and providing that the provision is void if it prevents the employee from participating in an agency’s investigation or from disclosing facts necessary to receive public benefits.[lxxxi]

(2018) enacted legislation to prohibit employers from using NDAs in settlement agreements or other resolutions of a claim that prevent the disclosure of the underlying facts and circumstances of sexual harassment claims, unless the condition of confidentiality is the complainant’s preference. The complainant must be given 21 days to consider the provision and seven days to revoke the agreement.[lxxxii]

Stop forced arbitration: (2019) enacted legislation to extend its 2018 prohibition on forced arbitration to all discrimination claims.[lxxxiii] Note: This law has been challenged in court with federal district courts finding it preempted by the Federal Arbitration Act and a state court finding that it was not preempted.[lxxxiv]

(2018) enacted legislation to prohibit mandatory arbitration to resolve allegations or claims of sexual harassment.[lxxxv] Note: This law has been challenged in court with federal district courts finding it preempted by the Federal Arbitration Act and a state court in finding that it was not preempted.[lxxxvi]

Protect those who speak up from defamation lawsuits: (2020) passed legislation strengthening its “anti-SLAPP” law by expanding the definition of “public interest” to cover “any subject other than a purely private matter” and requiring an award of attorneys’ fees and costs for an individual who defeats a SLAPP lawsuit.[lxxxvii] The bill sponsor and advocates spoke of this legislation as protecting those who speak out against sexual harassment, abuse, and assault from being “slapped” with defamation lawsuits.[lxxxviii]

Limit use of public funds in settlements: (2018) enacted legislation requiring state government officials and employees who have a judgment against them for sexual harassment to personally reimburse the state within 90 days for any payment the state made to the plaintiff.[lxxxix]

Extend statute of limitations: (2019) enacted legislation to extend the statute of limitations for filing workplace sexual harassment complaints with the Division of Human Rights from one to three years.[xc]

Establish a helpline: (2022) passed a bill establishing a toll-free confidential hotline for individuals with complaints of workplace sexual harassment to seek counsel and assistance.[xci]

Revise “severe or pervasive” standard: (2019) enacted legislation to explicitly remove the restrictive “severe or pervasive” standard for establishing a hostile work environment claim. Under the new standard, harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions, or privileges of employment because of the individual’s membership in one or more protected categories. The law provides that an employee need not compare their treatment to that of another employee in order to state a claim. Employers can assert a defense to such a claim if they can show that the harassing conduct did not rise above what a reasonable person in the same protected class would consider petty slights or trivial inconveniences.[xcii]

Strengthen anti-retaliation protections: (2021) passed a bill making clear that unlawful workplace retaliation includes disclosing an employee’s personnel files because they have opposed a discriminatory practice.[xciii]

(2019) enacted legislation prohibiting employers from retaliating against employees who speak up about employment discrimination or other labor violations by contacting, or threatening to contact, immigration authorities or reporting, or threatening to report, an employee’s suspected citizenship or immigration status or that of an employee’s family or household member.[xciv]

Increase damages available to victims: (2019) which previously provided for uncapped compensatory damages in discrimination claims, but did not authorize punitive damages, enacted legislation authorizing punitive damages, without limitation on the amount, for all employment discrimination actions brought against a private employer.[xcv]

Require anti-harassment training: (2018) enacted legislation to require New York’s Department of Labor to develop a model sexual harassment prevention training program, and to require all employers to conduct annual interactive training using either the state model or a model that meets state standards.[xcvi]

Require anti-harassment policy: (2019) enacted legislation requiring employers to provide employees their sexual harassment prevention policy at the time of hire and at every annual training, in English and in the employee’s primary language if the commissioner on labor offers model policies in the employee’s primary language. The legislation also required the Department of Labor to evaluate the impact of its current model sexual harassment prevention guidance document and sexual harassment prevention policy every four years and update as needed.[xcvii]

(2018) enacted legislation to require its Department of Labor to create and publish a model sexual harassment prevention guidance document and sexual harassment prevention policy that employers may utilize in their adoption of a sexual harassment prevention policy.[xcviii] It also enacted legislation to require bidders on state contracts to certify as part of the bidding process that the bidder has implemented a written policy addressing workplace sexual harassment prevention and provides annual sexual harassment prevention training to all of its employees. If a bidder is unable to make this certification, they must provide a signed statement explaining why.[xcix]

Closing a loophole in employer liability: (2019) enacted legislation to provide that the fact that an individual did not make a complaint to the employer about harassment does not determine whether the employer is liable for the harassment.[c]

 

New Jersey

Limit Nondisclosure Agreements (NDAs): (2019) enacted legislation to make NDAs in employment contracts or settlement agreements that prevent the disclosure of details relating to a claim of discrimination, retaliation, or harassment unenforceable against employees. If the employee publicly reveals sufficient information to identify the employer, the employee will not be able to enforce the employer’s nondisclosure obligations. Every settlement agreement must include a notice specifying that although the parties may have agreed to keep the settlement and underlying facts confidential, such a provision in an agreement is unenforceable against the employer if the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable. The legislation also prohibits retaliation against an employee who refuses to enter into an agreement with an unenforceable provision.[ci]

Stop forced arbitration: (2019) enacted legislation to make unenforceable provisions in employment contracts that waive any substantive or procedural right or remedy relating to discrimination, retaliation, or harassment claims. The legislation also specifically provides that no right or remedy under the New Jersey Law Against Discrimination or any other statute or case law can be prospectively waived. Retaliation against an employee who refuses to enter into an employment contract with an unenforceable provision is prohibited.[cii] Note: this law is currently being challenged in federal court as preempted by the Federal Arbitration Act.[ciii]

Establish a helpline: (2020) enacted legislation requiring the Civil Service Commission—an independent body that hears and rules on appeals filed by civil service employees and candidates—to set up a confidential hotline for state employees to report incidents of workplace harassment and discrimination, and to receive information about relevant laws, policies, and procedures, as well as referrals for further assistance and counseling, if requested. The Commission is required to produce an annual report to the public on the number and types of calls received.[civ]

Require anti-harassment training: (2020) enacted legislation requiring state employees responsible for managing and investigating complaints of harassment and discrimination to receive additional training every three years conducted by the New Jersey Attorney General’s Advocacy Institute, or another organization with expertise in response to and prevention of sexual violence, in consultation with the New Jersey Coalition Against Sexual Assault.[cv]

Panic buttons: (2019) enacted legislation requiring hotel employers to provide panic buttons to each employee assigned to work alone in a guest room, to be used in the event of a crime, threat of assault or harassment, or another emergency. The law also requires hotel employers to keep a record of guests that commit acts of violence.[cvi]  

 

New Mexico

Limit Nondisclosure Agreements (NDAs): (2020) enacted legislation prohibiting private employers from requiring employees to sign an NDA in settlement agreements related to sexual harassment, discrimination, or retaliation or from preventing employees from disclosing sexual harassment, discrimination, or retaliation occurring in the workplace or at a work-related event. The legislation does allow for confidentiality about the amount of the settlement or, at the employee’s request, facts that could lead to the identification of the employee or factual information related to the underlying claim. No such confidentiality provisions, however, can preclude employees from testifying in judicial, administrative, or other proceedings pursuant to a valid subpoena or legal order.[cvii]

 

Oregon

Limit Nondisclosure Agreements (NDAs): (2019) enacted legislation to prohibit employers from requiring an employee or prospective employee as a condition of employment, continued employment, promotion, compensation, or the receipt of benefits to enter into an agreement preventing the disclosure of discrimination (including harassment) or sexual assault that occurred in the workplace, at a work-related event, or between an employer and an employee off the employment premises.  An employer may enter into a settlement, separation, or severance agreement with a nondisclosure or a nondisparagment provision preventing the disclosure of factual information relating to discrimination, harassment, or sexual assault only if the employee claiming to be discriminated against requests it and is given seven days to revoke the agreement.[cviii]

(2019) Oregon also enacted legislation prohibiting candidates, political committees of campaigns, and public office holders from using campaign funds and public funds to make payments in connection with a nondisclosure agreement relating to workplace discrimination, including harassment and sexual assault.[cix]

(2022) enacted legislation clarifying its law limiting the use of NDAs in employment contracts and settlements. The law provides that a settlement agreement cannot include an NDA as to the amount of or fact of any settlement, unless the employee requests it. This is in addition to the existing limitation on NDAs that would prevent disclosure of discriminatory workplace conduct. The new law also provides that an employer cannot condition a settlement offer on an employee requesting to include an NDA or nondisparagement agreement.[cx]

Prohibit no-rehire provisions: (2019) enacted legislation to prohibit no-rehire provisions in agreements resolving claims of discrimination (including harassment) or sexual assault, unless the employee requests it and is given seven days after signing to revoke the agreement. The new law does not prohibit, however, the employer from including a no-rehire provision in a settlement with an employee if the employer has made a good faith determination that the employee engaged in discrimination (including harassment) or sexual assault.[cxi]

Extend statute of limitations: (2019) enacted legislation to give employees who have experienced discrimination (including harassment) five years, instead of one, to file a complaint with the Bureau of Labor and Industries or a civil suit.[cxii]

Require anti-harassment policy: (2019) enacted legislation to require all employers to adopt a written policy to reduce and prevent discrimination (including harassment) and sexual assault. The policy must provide, among other things, a process for an employee to report discrimination and sexual assault and statements outlining the statute of limitations and the prohibition on NDAs. Additionally, the law requires the Bureau of Labor and Industry to make model procedures and policies available on its website, which employers may use to establish their own policies.[cxiii] Oregon enacted similar requirements for public employers.[cxiv]

 

South Dakota

Protect more workers: (2020) enacted legislation extending protections against workplace discrimination to interns.[cxv]

 

Tennessee

Limit Nondisclosure Agreements (NDAs): (2019) enacted legislation to make void and unenforceable any provision in a settlement agreement entered into by a governmental entity that prohibits the parties from disclosing the details of the claim or the identities of people related to the claim. However, victims of sexual harassment, sexual assault, and other offenses, including sexual exploitation and domestic abuse, retain the ability to keep their identities confidential.[cxvi]

(2018) enacted legislation to make it unlawful to require an employee or prospective employee, as a condition of employment, to execute or renew an NDA regarding sexual harassment. Employees covered by an NDA cannot be fired as retaliation for breaking the NDA.[cxvii]

 

Texas

Cover more employers: (2021) enacted legislation extending protections against sexual harassment to all employees, regardless of the size of the employer’s business. Previously, Texas sexual harassment law only covered government employers and private employers with 15 or more employees.[cxviii]

Protect those who speak up from defamation lawsuits: (2019) enacted legislation providing that charitable organizations, or such an organization’s employee, volunteer, or independent contractor, cannot be held liable for disclosing to a current or prospective employer, in good faith, information reasonably believed to be true about a former employee, volunteer, or independent contractor engaging in sexual harassment, assault, abuse, trafficking, or misconduct.[cxix]

Extend statute of limitations: (2021) enacted legislation to extend the statute of limitations for filing workplace sexual harassment complaints with the Texas Workforce Commission from 180 days to 300 days after the alleged sexual harassment occurred.[cxx]

Create individual liability for harassment: (2021) expanded the definition of a covered “employer” to include any person or entity acting “directly in the interests of an employer in relation to an employee.”[cxxi] This change broadens who may be liable for harassment, which could potentially include supervisors, co-workers, and others acting on behalf of the employer.

 

Virginia

Protect more workers: (2021) enacted legislation to protect domestic workers from harassment and other forms of discrimination.[cxxii]

Limit Nondisclosure Agreements (NDAs): (2019) enacted legislation to prohibit employers from requiring an employee or prospective employee to sign, as a condition of employment, a nondisclosure or confidentiality agreement that has the purpose or effect of concealing the details relating to sexual assault.[cxxiii]

Increase damages available to victims: (2020) enacted legislation allowing victims of employment discrimination to recover uncapped compensatory and punitive damages to address their injury. The law had previously only provided victims up to 12 months of back pay.[cxxiv]

Require anti-harassment training: (2020) enacted legislation requiring all government contractors with more than 5 employees and a contract over $10,000 to provide annual training on the employer’s sexual harassment policy to all supervisors and employees.[cxxv]

Require anti-harassment policy: (2020) enacted legislation requiring all government contractors with more than 5 employees and a contract over $10,000 to post their sexual harassment policy in a conspicuous public place and publish it in the employee handbook.[cxxvi]

Ensuring rights to be free from harassment can be enforced: (2020) enacted legislation strengthening its cause of action for employment discrimination, which previously only provided relief for a narrow set of employees working for an employer with more than 5 but less than 15 employees and only when an employee was discriminatorily discharged. Virginia’s new law provides a cause of action for all types of discrimination, not just discrimination ending in discharge, and protects employees whose workplace has 15 or more employees, or 5 or more employees in the case of unlawful discharge. The new law also explicitly prohibits discrimination on the basis of sexual orientation or gender identity.[cxxvii]

 

Vermont

Protect more workers: (2018) enacted legislation to prohibit sexual harassment of all people engaged to perform work or services, expanding protections against harassment to independent contractors, volunteers, and interns.[cxxviii]

Limit Nondisclosure Agreements (NDAs): (2018) enacted legislation to prohibit employers from requiring any employee or prospective employee, as a condition of employment, to sign an agreement that prevents the individual from opposing, disclosing, reporting, or participating in a sexual harassment investigation. The legislation also requires a settlement agreement relating to sexual harassment explicitly state that it does not prohibit the claimant from: filing a complaint with any state or federal agency; participating in an investigation by a state or federal agency; testifying or complying with discovery requests in a proceeding related to a claim of sexual harassment; or engaging in concerted activities with other employees under state or federal labor relations laws. The agreement must also state that it does not waive any rights or claims that may arise after the settlement is executed.[cxxix]

Prohibiting No-Rehire Provisions: (2018) enacted legislation to prohibit no-rehire provisions in sexual harassment settlements that prevent an employee from working again for the employer, or any parent company, subsidiary, division, or affiliate of the employer.[cxxx]

Stop forced arbitration: (2018) enacted legislation to prohibit employers, except as otherwise permitted by state or federal law, from requiring any employee or prospective employee to sign an agreement or waiver as a condition of employment that waives a substantive or procedural right or remedy available to the employee with respect to a sexual harassment claim.[cxxxi]

Extend statute of limitations: (2022) enacted legislation extending the statute of limitations for employment discrimination claims from three years to six years.[cxxxii]

Require anti-harassment training: (2018) enacted legislation to allow the state Attorney General or the Human Rights Commission to inspect employers for compliance with sexual harassment laws and, if the Attorney General or Commission deems it necessary, require an employer, to provide an annual education and training program to all employees or to conduct an annual, anonymous climate survey, or both, for a period of up to three years.[cxxxiii]

Require notice of employee rights: (2018) enacted legislation to require employers to post or otherwise share with employees information about employees’ rights to be free from sexual harassment.[cxxxiv]

Require climate surveys: (2018) enacted legislation to allow the state Attorney General or the Human Rights Commission to inspect employers for compliance with sexual harassment laws and, if the Attorney General or Commission deems it necessary, require an employer, to provide an annual education and training program to all employees or to conduct an annual, anonymous climate survey, or both, for a period of up to three years.[cxxxv]

 

Washington

Limit Nondisclosure Agreements (NDAs): (2018) enacted legislation to prohibit employers from requiring an employee, as a condition of employment, to sign an NDA, waiver, or other document that prevents the employee from disclosing sexual harassment or assault occurring in the workplace, at work-related events, or between employees, or an employer and an employee, off the employment premises.[cxxxvi] Washington also enacted a separate law providing that NDAs cannot be used to limit a person from producing evidence or testimony related to past instances of sexual harassment or sexual assault by a party to a civil action.[cxxxvii]

(2022) enacted legislation prohibiting employers from requesting or requiring employees to enter into any agreement that includes a nondisparagement nondisclosure provision preventing employees from disclosing discrimination, harassment, retaliation, a wage and hour violation, and sexual assault. The NDA ban, however, does not keep parties from agreeing to keep the amount paid to settle a claim confidential. The new law repeals Washington’s 2018 NDA law which only prohibited NDAs that prevent individuals from disclosing sexual assault or sexual harassment and only when imposed as a condition of employment.[cxxxviii]

Stop forced arbitration: (2018) enacted legislation to make void and unenforceable any provisions requiring an employee to waive their right to publicly pursue a cause of action, or to publicly file a complaint with the appropriate state or federal agencies, relating to any cause of action arising under state or federal anti-discrimination laws, as well as any provision that requires an employee to resolve claims of discrimination in a confidential dispute resolution process.[cxxxix]

Protect those who speak up from defamation lawsuits: (2021) enacted the Uniform Public Expression Protection Act (UPEPA) to protect individuals from meritless defamation lawsuits. Washington previously had an anti-SLAPP law, but it was struck down by the state Supreme Court as unconstitutional in 2015.[cxl] The UPEPA reinstated anti-SLAPP protections in the state, providing immunity from civil liability for individuals’ communications during legal or other governmental proceedings; communications on an issue under consideration in legal or other governmental proceedings; or communications on issues of public concern. The new law also allows individuals to file a motion to dismiss the case and stay discovery and all other proceedings involving the complainant and responding party. Individuals who defeat a SLAPP lawsuit are entitled to reasonable attorneys’ fees and litigation expenses.[cxli]

Require anti-harassment policy: (2020) enacted legislation requiring employers of long-term care workers to develop and disseminate a written policy on how to handle workplace discrimination and abusive conduct, including sexual harassment or assault. The policy must be available in English and each of the three languages spoken most by long-term care workers and must be reviewed and updated annually. Among other provisions, employers must also implement plans to prevent and protect employees from discrimination and abusive conduct to be developed, monitored, and updated at least every three years by a workplace safety committee of employee-elected members, employer-selected members, and at least one service recipient.[cxlii]

(2018) enacted legislation to establish a state women’s commission to address several issues, including best practices for sexual harassment policies, training, and recommendations for state agencies to update their policies.[cxliii] Additionally, the state equal employment opportunity commission is required to convene a working group to develop model policies and best practices to prevent sexual harassment in the workplace, including training, enforcement, and reporting mechanisms.[cxliv]

Require anti-harassment training: (2019) enacted legislation requiring the Department of Labor and Industries to develop a know your rights training for adult entertainers, including training on the reporting of sexual abuse and sexual harassment. Adult entertainers must receive this training before they can receive or renew their licenses.[cxlv]

(2019) enacted legislation requiring every hotel, motel, retail, security guard entity, and property services contractor that acts as an employer to provide sexual harassment and discrimination training to all employees. These employers are also required to adopt a sexual harassment policy and property services contractors are required to submit to the Department of Labor and Industries the date they adopted their sexual harassment policy, the number of supervisors, employees, and managers that have received the sexual harassment training, and the physical address of the work locations of janitorial workers.[cxlvi]

Panic Buttons: (2019) enacted legislation requiring adult entertainment establishments to provide their entertainers with panic buttons. The legislation also requires establishments to record accusations that a customer has committed sexual assault or sexual harassment against an entertainer, retain the information for five years, and forbid the customer from returning to the establishment for at least three years, if the accusation is supported by a statement under the penalty of perjury or other evidence.[cxlvii]  

(2019) enacted legislation requiring every hotel, motel, retail, security guard entity, and property services contractor to provide employees with a panic button and a list of resources regarding sexual harassment and sexual assault.[cxlviii]