SB21-176 Protecting Opportunities And Workers' Rights Act (Winter (D), Pettersen (D)) [Lontine (D), Gray (D)]

KILLED BY HOUSE COMMITTEE

AMENDED: Very Significant

Appropriation: $3,930,639
Fiscal Impact: $6 million a year, half of which is estimated settlements by state agencies

Goal:

• Allow people to sue for employment discrimination in court without first exhausting all administrative proceedings so long as the person files a charge with the state’s civil rights commission or serves a written demand for relief to their employer and gives 14 days for response. Expands the statute of limitations for filing claims of discrimination from 6 months to 300 days
• Expands definition of employer for discrimination purposes so that domestic employees are included, as are independent contracts and sub-contractors, and anyone who performs a service in exchange for non-monetary compensation, like interns. Inmates are excluded Removes the sunset review from the civil rights division (was 2027)
• Adds marital status and caregiver status to list of protected classes for discrimination purposes. Caregiver status protections do not require special treatment from employer, just equal treatment of company leave, absenteeism, work performance, and job benefit policies
• Expands the definition of harassment and hostile work environment (see Description) and makes it easier to prove discrimination claims by explicitly stating the employee does not need to prove that their productivity declined as a result, that discriminatory remarks are relevant circumstantial evidence even if they are not uttered by supervisors, decision makers, or in the context of a hiring decision, and that the legal standard for harassment does not vary by workplace. Also makes it so a single incident of harassing conduct can be considered a hostile work environment, regardless of whether the harassment is severe or pervasive Does add as a defense that the conduct does not rise above what another person from the same protected characteristic (so same race, for instance, in a case of racial harrasment) would consider a petty slight or trivial inconvience
• Bars employers from conducing medical examinations or inquiries of job applicants unless all applicants for the same job category receive the same examination or inquiry and it is job-related. Employers may inquire about the ability of the applicant to perform job-related tasks Requires all employers with more than 20 employees to conduct annual harassment and discrimination prevention, bystander intervention, and workplace civility training to all employees. All new hires must receive training within 180 days of employment. Each employer must designate at least two people within the company to whom any harassing or discriminatory conduct may be reported. Employers with fewer than 20 employees are encouraged to provide training
• Bars non-disparagement, non-disclosure, or confidentiality provisions in discrimination settlements that protect the identity of the employer or prohibit the employee from disclosing information on the harassment, discrimination, or retaliation. The employee may request information that would expose their identity be shielded and the amount paid for the settlement may also be kept secret agreements unless the employee suggested it first and they apply equally to both parties. The non-disclosure must not prevent the employee from discussing the facts with immediate family, religious advisors, medical or mental health providers, legal counsel, financial advisors, tax preparers, or as required by law. Any material misrepresentation of the facts by the aggreved party, the employer or those who engaged in the discriminatory conduct voids the agreement

Description:

Previously the law just said harassment and a hostile workplace were discriminatory practices. The bill adds a definition for harassment: “to subject an individual to inferior terms, conditions, or privileges of employment, or to subject an individual to a hostile work environment, because unwelcome verbal, physical, or written conduct when the conduct is related to that individual’s disability, race, creed, color, sex, sexual orientation, marital status, caregiver status, religion, age, national origin, or ancestry and submission to conduct is either implicity or explicity made a condition for employment or when taken as a whole the conduct would be offensive to a reasonable person with similar characteristics as the offended individual”

Hostile work environment is “a hostile, offensive, oppressive, or intimidating work environment that deprives an individual of the individual’s right to work in a place free of discrimination when a reasonable person would find that offensive conduct: offends, humiliates, distresses, or intrudes upon the individual or otherwise interferes with and undermines the individual’s personal sense of well-being or safety; or affects the individual’s ability to perform the individual’s job as usual.”

The standard for determining reasonableness includes: the type of conduct, nature of conduct, frequency of conduct (while recognizing that a single instance may be offensive to a reasonable person), indentity of individual enganging in conduct, and if the individual subjected to the conduct felt implicit or explicit pressure to condone, encourage, or participate.

To determine existence of a hostile work environment, the bill says the nature of the workplace must only be considered when engaging in or witnessing prurient conduct and commentary is integral to the performance of job duties (so a strip club for instance would need to be considered differently). Likewise It is irrelevant that a particular occupation may have been characterized by a greater frequency of discriminatory comments or conduct in the past. Conduct does not have to be severe or pervasive to constitute discrimination or unfair employment, but it is an affirmative defense for the employer if they demonstrate they took prompt, reasonable, and remedial action to end the harassment, deter future harassers, and protect employees.

Adds failure to conduct a reasonable investigation of an employee’s complaint or to take prompt remedial action in response to a complaint as discriminatory or unfair employment practices.

For claims of harassment by a supervisor that do not involve use of power or authority of the supervisor, the employer can avoid liability only by establishing: the employer has a program with documented success in preventing reasonably designed to end harassment, deter future harassment, and protect employees from harassment punishing supervisors who unlawfully harass employees and communicated its existence to all employees, no employee has submitted a retaliation complaint within the past six years without the employer taking prompt and reasonable remedial action, and the harassed employee has unreasonably failed to take advantage of the employer’s program.

Information gleaned in medical exams must be collected and maintained in separate files and treated as confidential medical records. It may only be shared with supervisors and managers as needed to restrictions and accommodations needed for the work duties of the employee, with first aid and safety personnel if emergency treatment may be required, and with government officials investigating abuse of this law. Employers may conduct voluntary medical examinations.

Ability to sue in court first does not apply to state employees.

Bill also repeals the limits on remedies in age discrimination cases, which currently cannot receive compensatory or punitive damages, just affirmative relief (rehiring, back pay, front pay)

The use of non-disclosure agreements around the same alleged wrongdoers can be used in civil court as evidence in support of punative damages.

Requires state civil rights commission to develop sample training and education programs regarding prevention of harrassment and discrimination in the workplace, bystander interventions, and workplace civility. These must be made accessible free of charge to employers through the commision's website.

Employers required by the bill to offer training must keep records documenting their compliance for at least three years. Faliure to abide by any of the training requirements can be considered as evidence in a civil trial in support of punative damages. All employers, regardless of size, must include language in their employee manual or handbook or whatever outlines the conditions of their employment that employees should expect a workplace free from harassment and discrimination, the contact information for who any harassing or discriminatory conduct should be reported, and the contact information for the civil rights commission for reporting if the employee is not comfortable reporting to the designated individual. This must also be posted in a conspicious place. Violating this provision is a fine of at least $500 and at most $10,000.

Additional Information:

Arguments For:

Bottom Line:

• Discrimination cases are hard to win already, particularly in wrongful termination or hiring or promotion cases, so a lot of what this bill does is simply provide more concrete terms and steps employers must take to avoid liability so that when these cases are being adjudicated we are all working from the same starting point of what exactly harassment or a hostile work place is and what exactly an employer should do when such a case is brought to their attention
• People in domestic work clearly can be subject to harassment and discrimination. Discrimination based on marital status clearly should not be allowed. And neither should caregiver status. Remember: you can fire anyone who cannot perform the work or who keeps not showing up for work so a caregiver who cannot do the job won’t be protected
• No medical exams unless it is relevant to the job and everyone gets one, again a pretty obvious requirement
• Limiting damages in age discrimination cases makes no sense, a no-brainer to remove
• Secrecy in settlements is a detriment to the public good: we should know about the history of harassment and discrimination at workplaces

In Further Detail: Before we get into individual provisions of the bill it is important to acknowledge up front that discrimination cases are hard to win, particularly when it comes to wrongful termination but also to hiring and promotion cases. You have to demonstrate that your status as a protected class was the reason the event occurred and employers tend to come up with all sorts of other plausible reasons, including hard to define qualitative ones. The bill does a few things that should be fairly obvious. First, a real definition of harassment and hostile work environment so we have concrete law to point to instead leaving the definition up to the eyes of the beholder. Second, harassment and discrimination do not have to effect job performance. This seems obvious but again, having it in law makes a big difference. Third, people in domestic work can be subject to harassment and discrimination. Fourth, you cannot do medical exams or ask about medical history to probe for disabilities unless it is germane to performing work tasks and in that case, you better treat that medical history like the confidential thing it is. And fifth, Limiting age discrimination damages makes no sense whatsoever. This is actually one of the hardest types of discrimination to prove and there is no reason that employers shouldn’t be liable for damages in these cases. For the more controversial aspects of the bill, the reason for allowing for remedies through the courts is allow for people to take this issue out of the hands of one person in state government and immediately use our court system as it was intended. Barring secrecy in settlements unless the employee wants it violates the public interest in knowing about an employer’s history of workplace harassment and provides privacy shields for employers that do not deserve it. For requiring some sort of functioning program to deal with harassment or discrimination: if this means a bunch of employers create these programs to try to avoid liability that is great, system working as intended. On the concern that a single incident can be used to demonstrate a hostile work place. Yes, that’s what those words mean. A hostile work place does not have to be pervasive to be hostile. If it was pervasive, then it would be a pervasively hostile work place. This is why we judge these cases based on evidence, to determine the extent of the hostility and what that means in the context of this particular case. As in any discrimination case the employer can prove that the actions they took were not related to protected class or that the employer acted to address the hostile work place promptly. The bill also provides as a defense that the individual suing has taken this completely the wrong way or too far and that other people in the exact same circumstance would not have found the behavior harrassing or the workplace hostile. Or, like in the example in Arguments Against, that the employer had no idea this was happening through no fault of the employer. Let’s also pump the brakes on the worry that adding caregiver status will ruin employers. This is a protected category in multiple other states and the sky has not fallen. Employees have paid time off and family leave options. They may or may not have flexible schedules. What they do not have is carte blanche to leave work whenever they want, regardless of caregiver status. So no employer is going to be in trouble for firing an employee who doesn’t show up to work when they are supposed to. This is admittedly far more difficult to parse in salaried positions with high work requirements but here again we simply fall back on is the work required getting done or not? If it is, then obviously we want to protect someone from being fired or discriminated against. If not, then the employer is perfectly able to fire someone from not doing their job. Harassment and discrimination training can also be an important tool in establishing workplace expectations. At a minimum, no one can say they weren't aware.

Arguments Against:

Bottom Line:

• Allowing people to go straight to court will be a boon to lawyers but may result in an increase in frivolous cases clogging up the court system, wasting time and moneyTrainings are notorious for being a waste of time, even among people sympathetic to the cause
• This may be true in particular due to the way the bill expands definitions and protected categories. Having just one incident, no matter how severe, create a hostile work environment may push people to sue in more marginal cases (and some of those may find success). Caregiver status may be difficult in cases where long or irregular hours are part of the job and where accommodations may not be so easy
• The fact that state employees are excluded from this new ability to go straight to court is a tell on how burdensome it might be
• The removal of privacy in settlements may actually cause fewer settlements, since right now some companies will settle just to be rid of a case, but if they can’t be assured of privacy they are more likely to fight until the bitter end

In Further Detail: This will be a great boon to the lawyers in the state, who will happily be encouraging people to sue when there is the slightest whiff of harassment, in particular since now one ugly comment by one employee can make an entire workplace a hostile one. That standard of proof is far too low and could cause problems. For example, say a newly hired entry level employee makes a distasteful joke that plays on ethnic stereotypes. A clear example of offensive behavior we would all agree is wrong and harassing. No one reports this behavior or says anything but it is the only such incident the employee experiences. The harassed employee is later fired for poor performance. Is this an example of a hostile work environment where the fired employee can successfully sue? It may be difficult to prove but the bill would say yes. One incident, not severe or pervasive but clearly hostile and wrong. The employer may be able to get by because the incident was not reported, but you can see how a lot more real marginal cases are going to end up in court (since employees no longer need to go through the administrative route first). On caregiver status, here is an ugly truth: the requirement to care for another person can make it difficult for someone to perform certain types of jobs that require long or irregular hours. The bill’s blanket ban makes it difficult for employers to ensure their employees are capable of doing the job they are hired for. And it makes it impossible for an employer to move on from an employee who constantly has to leave or miss work because they have to care for someone else. That would be caregiver discrimination—being fired solely because you had to repeatedly miss work to care for another. Even in cases where the employer could prove declines in actual productivity, this provision will open the door to a lot more lawsuits (again since employees no longer have to go through the administrative route first). In both of these cases, and in others as well, removing the ability to have the state first adjudicate these and weed out all of the frivolous claims will waste time and money in our courts. A clear tell that the judicial route is more burdensome is that state employees still cannot take it under the terms of the bill. On the privacy in settlements issue, this could actually have the unintended consequence of making it harder to get a settlement. Right now some employers will settle cases so as to get rid of them and not go through the judicial or administrative process. If they could not guarantee secrecy that calculus will likely change and they are much more likely to fight every claim out to try to win instead. For the trainings, these are notorious for being a waste of time, even among people who are strong allies of workplace civility and preventing harassment and discrimination. They are generally poorly done, not well paid attention to, and just treated as a checkbox waste of time by nearly all involved.