BREAKING NEWS: President Trump Revokes a Long List of Biden Executive Orders
In one of numerous Executive Orders signed on January 20, 2025, President Trump issued an order entitled, “Initial Rescissions of Harmful Executive Orders and Actions.” The Executive Order revokes a long list of Executive Orders and actions by his predecessor, President Joe Biden.
As expected, many Biden Executive Orders revoked by President Trump were those in furtherance of diversity and inclusion efforts but included others, including those on pay transparency and COVID-19 protections that had not yet been rescinded by President Biden. Some highlights of the rescinded Executive Orders include:
Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (see our previous blog post, President Biden Issues Executive Order Addressing Gender Identity and Sexual Orientation Discrimination)
Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (see our post on the Executive Order issued during the first Trump Administration, which President Biden’s Executive Order had rescinded: President Trump Issues Executive Order on Combating Race and Sex Stereotyping)
Executive Order 14091, Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
Executive Order 14069, Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency (see President Biden Signs Executive Order Promoting Pay Equity and Transparency)
Executive Order 14099 of May 9, 2023 (Moving Beyond COVID-19 Vaccination Requirements for Federal Workers)
Executive Order 14020, Establishment of the White House Gender Policy Council (see Biden Administration Continues Actions Aimed at Addressing and Advancing Racial and Gender Equality)
Executive Order 14055, Nondisplacement of Qualified Workers Under Service Contracts (see our post on President Trump’s prior rescission of a similar measure in his first administration: President Trump Revokes Obama-Era Protections for Service Workers,)
Today’s Executive Order makes clear
[t]he revocations within this order will be the first of many steps the United States Federal Government will take to repair our institutions and our economy.
As such, today’s Executive Order is the first in what we expect will be a wave of executive actions issued by President Trump early in the new administration. We will monitor these developments and continue to provide updates and insights on the implications for federal contractors.
NLRB GC Issues Memo on Harmonizing NLRA and EEO Laws
Days before the Trump administration is set to take office, the National Labor Relations Board (NLRB) general counsel (GC) issued a memorandum explaining her view on how employers can balance compliance with the National Labor Relations Act (NLRA) and equal employment opportunity (EEO) laws when enforcing workplace anti-harassment and confidentiality policies.
Even though this memorandum could be rescinded by the new administration, its analysis may continue to be relevant for employers as they assess mitigation steps concerning potential unfair labor practice charges.
Quick Hits
The NLRB GC issued a memorandum addressing potential employer concerns about complying with EEO laws prohibiting discrimination and harassment in the workplace and the NLRA’s protections for employees engaging in concerted activity.
The memorandum emphasizes the GC’s view that the NLRA and EEO laws are complementary and “both can and should be given full effect.”
The memorandum was issued just days before a changeover in the presidential administration, which likely will affect the general counsel of the NLRB.
On January 16, 2025, the GC issued Memorandum GC 25-04, titled, “Harmonization of the NRLA and EEO Laws.” The memo is focused on potential conflicts between employers’ compliance with the NLRA and EEO laws in the context of (1) employer civility rules, (2) investigation confidentiality, and (3) employees’ use of offensive language and conduct.
While EEO laws, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), seek to protect workers from discrimination and harassment in the workplace, the NLRA protects workers’ rights to engage in concerted activity, which can, in some circumstances and subject to certain restrictions, include employee use of hostile language or conduct.
The memo emphasizes the GC’s view that the NLRA and EEO laws provide legal frameworks that are “complementary,” meant to “work in tandem,” and that “both can and should be given full effect.”
Workplace Civility Rules
The memo addresses the potential risk that enforcement of workplace “civility rules,” which seek to regulate language and conduct beyond what is covered by an employer anti-harassment policy, may be found to chill employees from exercising their NLRA rights. The memo notes that NLRA-protected activity “may be adversarial in nature” and critical of the employer, whether directed at “fellow employees, the public, or government agencies like the NLRB.”
Still, the memo states that employers “can avoid implicating potential EEO and NLRA concerns by maintaining and consistently enforcing an EEO anti-harassment policy or rule that specifically prohibits harassment based on EEO-protected characteristics.” Further, “workplace rules that are narrowly tailored, focused, and precise are most likely” to comply with both the NLRA and EEO laws, such as “a rule that specifically prohibits harassment based on EEO-protected characteristics would not raise any concerns under the NLRA,” the memo states. Stated differently, workplace civility rules and policies that focus on unlawful harassment and discrimination based on EEO-protected classifications should not violate the NLRA.
Investigative Confidentiality
Many employers have long had rules or practices concerning confidentiality in the context of workplace investigations. Such rules serve to encourage individuals to come forward with complaints or to participate in investigations as fact witnesses without fear of retaliation or internal conflict with coworkers. Nevertheless, such rules have been in the crosshairs of the NLRB for several years. The memo states that overbroad “investigative-confidentiality rules” may be unlawful if the rules make employees “think twice” before exercising their rights to communicate or “dissuade[s] employees from reporting unlawful conduct to the NLRB.” In particular, the memo states that “rules that preclude any communication about the allegations and investigation or that are applicable to any employee—victim, witness or third party—could be problematic for a number of reasons.” (Emphasis in the original.)
According to the memo, employers can design investigations to satisfy the NLRA and EEO laws without “imposing broad-based confidentiality rules on employees” by “maintaining strong anti-retaliation policies and ensuring that employees are aware of them.” Instead of demanding confidentiality, “an employer can advise interviewees of the specifics of its anti-retaliation policy and make clear the steps that it will take should it determine that there has been retaliation, and thus a violation of that policy,” the memo states.
The memo further states that employers should “consider the context of the particular investigation before requesting or requiring confidentiality.” If confidentiality is “truly needed,” the memo advises employers to “clearly identify the scope of the confidentiality requirement to interviewees, including the information and matters it covers and how long it lasts, so that employees do not misunderstand the breadth of information covered and the applicable length of time.”
Further, the GC also recognizes that the “employer itself” can keep information confidential by requiring confidentiality of supervisors and management, who are “not typically covered by the NLRA.” While these recommendations may not be practical in all situations, they provide useful guidance for human resources professionals as they conduct future investigations.
Offensive Language or Conduct
The memo recognized that employers may have concerns about balancing, on one hand, the NLRA liability risk from disciplining an employee for offensive language or conduct, and, on the other, EEO concerns from not taking disciplinary action.
The GC states that while protected speech and conduct connected with the exercise of Section 7 rights may be hostile in nature, including the use of “insults, obscenities, or other vulgar language or mannerisms,” the NLRA does not necessarily conflict with EEO protections.
First, conduct “not based on or motivated by a protected characteristic” likely does not implicate EEO laws, according to the memo. Second, for EEO laws to apply, the speech or conduct must be “sufficiently severe or pervasive” and “both objectively and subjectively offensive.”
At the same time, the memo emphasized that disciplining employees who exercise their NLRA rights may be unlawful, and the fact that an employee may have engaged in offensive language or conduct in exercising those rights “does not necessarily permit an employer to impose what would otherwise be unlawful discipline.”
However, language or conduct that does not violate EEO protections “may still weigh towards loss of NLRA protection when the nature of the conduct is assessed,” according to the memo. That assessment may look at whether an employee “persist[s] in using certain language or conduct after being advised not to do so pursuant to a lawful anti-discrimination or anti-harassment policy” and the impact on other employees, including whether the “language or conduct reasonably would negatively impact” other employees’ terms and conditions of employment or their exercise of NLRA rights based on their EEO-protected characteristics.
Ultimately, employers may need to evaluate employee offensive conduct and use of profanity on a case-by-case basis, balancing the risks of NLRA litigation with workplace culture concerns and EEO obligations.
Key Takeaways
The memorandum comes just days before President-elect Donald Trump takes office with the apparent goal of providing guidance regarding workplace rules on civility, confidentiality during investigations, and offensive language and conduct following the NLRB’s 2023 Stericycle, Inc. decision.
With the changeover in presidential administrations, it is quite likely that GC Memo 25-04 will be rescinded in the coming weeks. Still, NLRB regional directors will continue to apply the Stericycle case, and employers could face the risk of unfair labor practice (ULP) charges until (and unless) the new Trump Board overrules the Stericycle decision. As a result, the memo provides useful guidance for employers assessing ULP concerns and modifying their policies to mitigate legal risks.
Beltway Buzz, January 17, 2025
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C., could impact your business.
Day One Predictions. Monday, January 20, 2025, is Inauguration Day (as well as Martin Luther King Jr. Day). At the Buzz, we are well stocked with coffee and protein bars, as it is expected to be a busy day. We will obviously have a lot to discuss next week, but here are some policy issues that are on our radar.
Immigration. This is obviously a priority issue for Republicans, and President-elect Donald Trump could issue multiple executive orders on the topic. For example, establishing new policies relating to the southern border, travel restrictions, temporary protected status, and “Buy American, Hire American,” could all be the subject of executive orders next week.
Diversity, Equity, and Inclusion (DEI). President-elect Trump and Vice President-elect J.D. Vance, as well as other members of the incoming administration, have been critical of DEI. The Buzz expects an executive order targeting DEI offices and programs within the federal government that could also implicate similar programs for federal contractors.
National Labor Relations Board. President Biden established a new precedent by firing former National Labor Relations Board (NLRB) general counsel Peter Robb on his first day in the White House. In turn, President-elect Trump is expected to fire the current National Labor Relations Board (NLRB) general counsel, Jennifer Abruzzo. Who will step up as acting general counsel in Abruzzo’s place remains to be seen.
Dates and Deadlines We Are Watching. Inauguration Day isn’t the only date we are watching here at the Buzz, and we already have our eyes on the following key dates and deadlines:
OSHA—Proposed Heat Standard. As the Buzz noted last week, January 14, 2025, was the deadline for stakeholders to submit comments in response to the Occupational Safety and Health Administration’s (OSHA) proposed heat standard. The Buzz does not expect to hear much anytime soon about the fate of the standard under the incoming Trump administration. Of course, a final rule may never issue during the next four years, and it is possible that the new administration could issue a much narrower, more flexible version of the proposed standard at some point in the future.
New provisions of the Biden administration’s H-1B modernization rule became effective on January 17, 2025.
Subminimum Wage for Individuals With Disabilities. The comment docket for the U.S. Department of Labor’s (DOL) proposal to eliminate the subminimum wage for individuals with disabilities closed on January 17, 2025. Former chair of the House Committee on Education and the Workforce, Virginia Foxx (R-NC), has blasted the proposal as “misguided and irresponsible.”
Trump Nominates Employment Policy Veteran. This week, President-elect Trump announced that he will nominate Keith Sonderling as deputy secretary of Labor. Sonderling most recently served as commissioner on the U.S. Equal Employment Opportunity Commission (EEOC), where he led the Commission’s artificial intelligence policy efforts. Prior to his role on the Commission, Sonderling served as acting and deputy administrator of the DOL’s Wage and Hour Division. As such, Sonderling is well-attuned to the employment policy issues facing the business community.
Republican Senator Pushes Labor Reform. Senator Josh Hawley (R-MO) is circulating a framework for labor reform legislation on Capitol Hill. The unusual move would codify some of the much-maligned labor reform ideas that both Democrats and labor union bosses have pushed over the last several years. While no legislation has actually been introduced, according to the framework that is being circulated, the bill would:
require employers to post a notice of National Labor Relations Act (NLRA) rights. The NLRB tried doing this via regulation in 2011 (at the time, Hawley worked as both a law professor and an attorney at a religious nonprofit organization). The uproar from the employer community was incredible, and the regulation was struck down;
prohibit “unsafe work speed quotas” in warehouses. This is taken from the ill-conceived Warehouse Worker Protection Act;
prohibit mandatory employee meetings during which the pros and cons of unionization are discussed;
require an “ambush election” in less than twenty days;
require contract negotiations to begin within ten days after a representation election; and
enact civil penalties, increased damages, and allow for a private right of action.
Even if a bill is introduced, its chances of passage in this congressional session are slim. Still, that a Republican senator from a state that voted twice for President-elect Trump is pushing such changes to federal labor law is a sign of the populist influence in today’s Republican Party.
OSHA Withdraws Proposed COVID-19 Standard. Three years and two days after the Supreme Court of the United States effectively put an end to the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccination and testing emergency temporary standard (ETS), OSHA announced that it is withdrawing its proposed COVID-19 rule (that would have been permanent, as opposed to temporary). A final version of the rule sat at the White House’s Office of Information and Regulatory Affairs since December 2022. In an accompanying press release, OSHA stated it withdrew the proposed rule “because the most effective and efficient use of agency resources to protect healthcare workers from occupational exposure to COVID-19, as well as a host of other infectious diseases, is to focus its resources on the completion of an Infectious Diseases rulemaking for healthcare.”
DHS Extends TPS. Late last week, the U.S. Department of Homeland Security (DHS) extended Temporary Protected Status (TPS) designations for individuals from El Salvador (from March 10, 2025, to September 9, 2026), Venezuela (from April 3, 2025, through October 2, 2026), Ukraine (from April 20, 2025, through October 19, 2026), and Sudan (from April 20, 2025, through October 19, 2026). The secretary of Homeland Security can terminate TPS designations by providing notice in the Federal Register at least sixty days prior to expiration.
Cut to the Chase. On January 13, 1808, Salmon P. Chase was born in Cornish, New Hampshire. Chase was an attorney and anti-slavery activist who helped establish both the Free Soil Party (which fought against the expansion of slavery in the territories) and then the Republican Party. Chase served as senator from Ohio from 1849 to 1855 and then served as governor of Ohio from 1856 to 1860. He was elected to the U.S. Senate again in 1860, but soon resigned to become President Abraham Lincoln’s treasury secretary. After the 1864 death of Supreme Court Chief Justice Roger B. Taney (who authored Dred Scott v. Sanford), Lincoln nominated Chase to take his seat, and he was confirmed by the Senate on the same day. With this resume, Chase is one of a handful of politicians to have served in all three constitutional branches of government and as a state governor. Some other facts about Chase:
Paper currency first appeared during Chase’s tenure as treasury secretary. He—rather immodestly—put his own picture on the $1 bill. Chase is also often given credit for ordering the phrase “In God We Trust” to be engraved on U.S. coins.
Chase’s visage later appeared on the $10,000 bill, which was publicly circulated between 1928 and 1946. It is the largest denomination of U.S. currency ever circulated.
Chase presided over the impeachment proceedings of President Andrew Johnson in 1868.
Chase died of a stroke in 1873 while still serving as chief justice. The Court subsequently draped his chair and the bench with a black wool crêpe—a tradition that has since been followed at the Court following the death of a sitting justice.
OCR Issues Guidelines on Title IX’s Application to NIL Payments
As the sun sets on the Biden administration, the Office for Civil Rights of the U.S. Department of Education (OCR) provided a new Fact Sheet on Jan. 16, 2025, to “clarify” how Title IX will apply to universities’ direct payments to student-athletes for use of their names, images and likenesses (NIL) under the proposed House vs. NCAA settlement. The Fact Sheet is consistent with decades of prior OCR guidance. It is not surprising that “compensation from a school for use of a student-athlete’s NIL” under the House settlement will qualify as “athletic financial assistance” subject to Title IX. It is also not surprising that OCR reminded schools that they retain responsibility to treat male and female student-athletes equitably even when NIL payments are made by affiliated third parties like collectives.
The key, as always, to Title IX compliance is in the implementation – the details of how schools are implementing their House structures.
Title IX Applies to Schools’ House Payments
While OCR inaccurately mingled two different Title IX standards applicable to athletic financial assistance on page 4 of the Fact Sheet (which confused many commentators on social media), OCR ultimately set forth the standard in the applicable Section 4 that is consistent with Title IX regulations dating back to 1979:
“When a school provides athletic financial assistance in forms other than scholarships or grants, including compensation for the use of a student-athlete’s NIL, such assistance also must be made proportionately available to male and female athletes.” (Emphasis added.)
This is not necessarily a dollar-for-dollar proportionality test. There may be legitimate non-discriminatory justifications to explain differences in who qualifies for House payments as well as their amounts, as long as a school’s House payment structure provides for equitable availability.
Implementation Is Key
The pathway for schools to implement House consistently with federal civil rights laws remains available for those universities that choose to take it.
The keys for schools’ Title IX-compliant implementation will remain implementing an equitable NIL marketing strategy and structuring good-faith NIL valuations, as many schools have begun to do. Of course, there are many nuances to the legal implementation.
Conclusion
Because the new Fact Sheet doesn’t change long-standing Title IX guidance, this particular Biden administration action is unlikely to affect Judge Claudia Wilken’s approval of the House settlement itself, and nothing would be accomplished if this Fact Sheet were withdrawn by OCR next week because it merely reiterates existing Title IX concepts. Of course, the incoming administration or Congress may take a new legal approach to this evolving area of our industry.
Lawsuits are inevitable over Title IX’s application to schools’ House implementation strategies. Developing Title IX-compliant NIL and House frameworks now are essential for future defense strategies.
Nasdaq Board Diversity Rules Struck Down in Court
On December 11, 2024, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc in Alliance for Fair Board Recruitment v. SEC, held that the approval by the U.S. Securities and Exchange Commission (SEC) of the Nasdaq Board Diversity Rules was arbitrary, capricious, and in contravention of the Securities Exchange Act of 1934, and vacated the approval of those Rules.
It is unclear if the SEC will seek to appeal the decision to the U.S. Supreme Court or if that court will grant the petition for certiorari. However, in a December 12, 2024, statement, Jeff Thomas, Nasdaq’s Global Head of Listings, confirmed that Nasdaq will not seek to appeal the ruling, and companies seeking Nasdaq listing or listed on the Nasdaq stock markets will not need to comply with the Diversity Rules.
The Diversity Rules, proposed as a securities exchange listing requirement in December 2020 and approved by the SEC under Section 19(b)(1) of the Exchange Act, went into effect in August 2021. Subject to certain transition periods and exceptions, it required each Nasdaq-listed company to publicly disclose information on the voluntary self-identified gender, racial characteristics, and LGBTQ+ status of the members of the company’s board of directors. The Exchange also required each Nasdaq-listed company, subject to certain exceptions, to have, or explain why it does not have, at least two members of its board of directors who are considered “diverse,” including at least one director who self-identifies as female and at least one director who self-identifies as an underrepresented minority or LGBTQ+. In connection with the Diversity Rules, Nasdaq provided recruiting assistance for interested public companies to recruit diverse board members.
New Jersey Guidance on AI: Employers Must Comply With State Anti-Discrimination Standards
On January 9, 2025, New Jersey Attorney General Matthew J. Platkin and the Division on Civil Rights issued guidance stating that New Jersey’s anti-discrimination law applies to artificial intelligence. Specifically, the New Jersey Law Against Discrimination (“LAD”) applies to algorithmic discrimination – discrimination that results from the use of automated decision-making tools – the same way it has long applied to other forms of discriminatory conduct.
In a statement accompanying the guidance, the Attorney General explained that while “technological innovation . . . has the potential to revolutionize key industries . . . it is also critically important that the needs of our state’s diverse communities are considered as these new technologies are deployed.” This move is part of a growing trend among states to address and mitigate the risks of potential algorithmic discrimination resulting from employers’ use of AI systems.
LAD’s Prohibition of Algorithmic Discrimination
The guidance explains that the term “automated decision-making tool” refers to any technological tool, including but not limited to, a software tool, system, or process that is used to automate all or part of the human decision-making process. Automated decision-making tools can incorporate technologies such as generative AI, machine-learning models, traditional statistical tools, and decision trees.
The guidance makes clear that under the LAD, discrimination is prohibited regardless of whether it is caused by automated decision-making tools or human actions. The LAD’s broad purpose is to eliminate discrimination, and it doesn’t distinguish between the mechanisms used to discriminate. This means that employers will still be held accountable under the LAD for discriminatory practices, even if those practices rely on automated systems. An employer can violate the LAD even if it has no intent to discriminate, and even if a third-party was responsible for developing the automated decision-making tool. Essentially, claims of algorithmic discrimination are assessed the same way as other discrimination claims under the LAD.
The LAD prohibits algorithmic discrimination on the basis of actual or perceived race, religion, color, national origin, sexual orientation, pregnancy, breastfeeding, sex, gender identity, gender expression, disability, and other protected characteristics. The LAD also prohibits algorithmic discrimination when it precludes or impedes the provision of reasonable accommodations, or of modifications to policies, procedures, or physical structures to ensure accessibility for people based on their disability, religion, pregnancy, or breastfeeding status.
Unlike the New York City law that restricts employers’ ability to use automated employment decision tools in hiring and promotion decisions within New York City and requires employers to perform a bias audit of such tools to assess the potential disparate impact on sex, race, and ethnicity, there is no audit requirement under the LAD. However, the Attorney General’s guidance does recognize that “algorithmic bias” can occur in the use of automated decision-making tools and recommends various steps employers can take to identify and eliminate such bias, such as:
implementing quality control measures for any data used in designing, training, and deploying the tool;
conducting impact assessments;
having pre-and post-deployment bias audits performed by independent parties;
providing notice of their use of an automated decision making tool;
involving people impacted by their use of a tool in the development of the tool; and
purposely attacking the tools to search for flaws.
This new guidance highlights the need for employers to exercise caution when using artificial intelligence and to thoroughly assess any automated decision-making tools they intend to implement.
Tamy Dawli is a law clerk and contributed to this article
The DEI Stalemate: Paying the Price for the Wrong Move
Three Ward and Smith attorneys described what can happen when a DEI initiative goes wrong, placing an organization in a legal stalemate with its employees.
In a unique, interactive session that was part of the firm’s annual In-House Counsel seminar, participants evaluated potential DEI outcomes by analyzing three fictional scenarios. With elements pulled from real-life cases, the discussion illustrated how the stakes can become increasingly high with DEI practices.
Each participant assumed a different role, from in-house counsel and employee to accuser and accused, creating a lively examination of the benefits of DEI and the challenges associated with implementation, as well as how to develop solutions for evolving issues in the DEI landscape.
The discussion was led by Ken Gray, leader of the Labor and Employment Law Group, X. Lightfoot, an employment and personal injury attorney, and Avery J. Locklear, a labor and employment attorney.
The Technology Company Scenario
The first scenario involved a well-intentioned technology company that recently hired a new SVP in charge of Diversity, Equity, and Inclusion (DEI), Jordan Ellis. The business in question is a tech leader with over 10,000 employees across the U.S.
Ellis was asked to perform an assessment of the company’s workforce and leadership diversity. He found a number of areas in need of improvement, including female representation in leadership, Black/African American representation in leadership, and Asian/Hispanic representation in leadership.
Tasked with improving these metrics by the CEO, Ellis re-evaluated the Director of Communications role held by John Roe, a White man with a strong track record. Ellis then made the decision to inform Roe of a strategic shift within the company and relieved him of his duties.
The role was split into two new positions that were filled by two qualified deputies: one a White woman, the other a Black woman. Ellis believed the move aligned with the company’s DEI goals, representing a strategic step in making the leadership more inclusive and diverse.
Potential Response to Litigation?
The audience was asked to determine if any possible defense asserted by the company in response to a claim made by Roe represented a house of cards. “This was a fairly clear example of discrimination in relation to Title VII,” noted Gray, “which prohibits discrimination based on race, color, religion, sex, and national origin.”
The scenario was based on a real case, Duvall v. Novant Health, Inc. “In this case, a white management level employee who received above average evaluations got the axe,” said Gray. “It was a one-week jury trial, and the jury awarded $10 million.”
The decision made clear that it is permissible for employers to use DEI programs; however, these programs may not form the basis for adverse employment decisions.
“Some call this reverse discrimination, but I just call it discrimination. It’s important to note that the Act doesn’t say in regard to sex, the female sex, or in regard to race, the Black race or the Brown race. It just says race, it just says sex,” Gray explained.
The case established a significant precedent and illustrated a pitfall associated with poorly implemented DEI programs.
A Venture Capital Fund’s Contested Contest
The next scenario involved a venture capital fund interested in supporting businesses led by women of color. To close the funding gap, the fund created a grant contest with a prize of $50,000, growth tools, and mentorship opportunities.
Eligibility was open to Black women who were U.S. residents, with businesses that were at least 51 percent Black woman-owned. The audience discussed potential legal issues an in-house attorney could face as a result of the contest, which included an entry form with official competition rules.
The rules were explicit, stating in all caps that, “BY ENTERING THIS CONTEST, YOU AGREE TO THESE OFFICIAL RULES, WHICH ARE A CONTRACT…”
Two companies with owners who were not Black women were rejected after submitting applications for the contest. The Chief Legal Officers for both companies, Vegan Now and Well Soul, were members of the Collective of Corporate Counsel (CCC), a national bar association promoting the common business interests of in-house counsel through education, networking, and advocacy.
Would it be permissible for CCC to sue on behalf of Vegan Now and Well Soul? Did the rules on the entry form constitute a contract? The audience considered these and other questions.
The contention of CCC was that the form constituted a contract since the potential contest winners entered into a bargain-for-exchange when they applied. CCC’s argument was based on 42 USC § 1981, a federal law prohibiting discrimination on the basis of race, color, and ethnicity when making and enforcing contracts.
CCC also contended that the contest violated section 1981 due to its terms, as it categorically excluded non-black applicants from eligibility because of race. “If this sounds familiar, the reason is that it mirrors the factual pattern of a case that went before the 11th Circuit Court of Appeals,” commented Lightfoot.
The case involved the American Alliance for Equal Rights and a venture capital fund out of Atlanta, the Fearless Fund. “Ultimately, the court ruled that the membership organization did have standing to sue on behalf of its members, and the contest likely violated Section 1981 of the Civil Rights Act of 1866,” added Lightfoot.
The Fearless Fund settled the lawsuit and discontinued the contest as a response.
Breaking Boundaries Baristas
In the final scenario, the team explored how a well-intentioned coffee shop owner brewed trouble in her organization with a DEI policy gone wrong. Hiring people of diverse backgrounds and creating a welcoming environment for her team was a central focus for the owner, Linda Harper, who operates three local branches with 20 employees.
One of Linda’s employees, Sam Rowe, was assigned female at birth. “Sam has been living as a man and recently shared that his new pronouns are he/him,” said Locklear. “Though Sam’s announcement was mostly accepted, some of the team didn’t felt comfortable with his transition.”
A heterosexual female colleague, Olivia Spencer, struggled to adapt to Sam’s pronouns and had to be corrected multiple times. A heterosexual male colleague, Ben Paulson, admits the transition makes him somewhat uncomfortable. However, he has respected Sam’s pronouns.
Locklear asked whether Olivia’s and Ben’s behavior has risen to the level of creating a hostile work environment. The answer, of course, is that it depends and, as it is with so many other topics within the legal profession, there is no such thing as a one-size-fits-all, bright-line rule that can be applied to every situation.
Slurs and the misuse of pronouns by co-workers can encourage similar behavior from customers. To illustrate this idea, Gray described a case in which he assisted a client in 2016. “People would approach the coworkers and ask whether their colleague was a man or a woman,” he said. “This would occasionally result in slurs, and the customers would pick up on that, perpetuating the hostile work environment.”
The facts have to be evaluated in the context of every situation. “It boils down to whether the behavior was so severe and pervasive it created a hostile work environment. There’s no magic number of how many harassing events need to occur,” advised Locklear. “It’s based on all the circumstances.”
The EEOC issued new guidance on transgender employees in the workplace in April of 2024. A key aspect of this guidance was the misgendering of employees in front of coworkers and customers to the extent it made them uncomfortable.
“If it’s a long-term employee, there are going to be mistakes, and everyone has to give each other a little bit of grace, but whenever in doubt, you can always just use that person’s name,” added Locklear.
Mandatory Work Events
In an effort to foster unity and celebrate Pride Month, Linda organizes a mandatory drag queen night for the entire workforce. Her hope is that an evening with celebrity impersonator, Holly Wood, could bring the team together through a shared experience emphasizing inclusion.
While some employees are pumped about the event, some, including Ben and Olivia, are not comfortable attending. Sam also feels uneasy, sensing the event is directed at him in a way that feels awkward instead of supportive.
Ben asks to be excused from the event; Linda reiterates that attendance is mandatory and disciplinary action will follow if employees fail to attend.
The day after, Olivia tells Linda she feels the company is “too woke,” and she no longer enjoys working there. Sam describes new tension with his colleagues and feels some are treating him differently as a result of the event.
After some reflection, Linda realizes her approach may have inadvertently caused discomfort among the employees she wanted to support with her commitment to inclusivity. To move forward, she begins considering new ways to promote understanding and respect within her team.
The audience considered what went wrong and there was vast consensus that the event should not have been mandatory.
“This could have been fun, but making it mandatory was a bad idea, especially since it was a social event and an employee had already expressed discomfort,” Locklear explained.
Though the scenario was farfetched, it holds a number of important lessons for employers, Locklear added. “One is to educate your workforce,” she said. “Another could be to update your policies so a person who is transitioning knows who they can talk to about it.”
Any information provided in confidence should remain confidential. Being open about new ideas and willing to have frank discussions with employees is advisable. Assessing whether dress codes are gender-neutral could be another proactive way to foster a positive work environment.
Conclusion
The employment attorneys highlighted well-intentioned actors taking steps that caused issues for members of their fictional workforces. The team cautions in-house counsel against unintended consequences and offers training insights in Part 2 of the session.
Massachusetts Launches Online Portal for Filing Workforce Demographic Data
Massachusetts recently opened the portal that certain employers must use to submit their workforce demographic data to the state by February 3, 2025.
Quick Hits
A new law in Massachusetts requires employers to report their workforce demographic data to the state each year.
The state just opened the online portal for submitting the data.
The deadline to file the data is February 3, 2025.
The federal government requires certain employers to submit workforce demographic data in a report, called an EEO-1 form, each year. Under a new state law, the Francis Perkins Workplace Equity Act, Massachusetts employers with one hundred or more employees (and which are subject to EEO-1 reporting obligations) must send their most recent EEO-1 report to the state each year.
The state recently opened a new portal that employers must use to submit their data.
The site does not require login information, but it allows the direct upload of the reports through the provided link. The instructions direct filers to make sure the uploaded file name contains the legal name of the filing entity and the type of report being filed, such as EEO-1 reports.
The instructions provide contact information for several agencies that can answer questions concerning the implementation and interpretation of the filing requirement.
The Massachusetts Executive Office of Labor and Workforce Development (EOLWD) recently published guidance in the form of frequently asked questions (FAQs) to help employers comply with the workforce demographic reporting requirements.
Although this notice shows the filing deadline is February 1, 2025, the EOLWD has said that filings will be accepted through February 3, 2025. Employers do not need to include pay data this year.
Next Steps
Massachusetts employers may wish to make the necessary preparations to file the required reports with the state before the deadline using the newly opened online portal. As a reminder, EOWLD has stated that employers need only file the most recent EEO-1 reports they have. The filing platform for the 2024 EEO-1 reports has not opened yet.
Massachusetts Pay Transparency Law: What Employers Need to Know Before February
Last July, Massachusetts joined a growing number of states mandating that employers provide pay transparency to employees. The Massachusetts pay transparency law also includes a wage data reporting component that requires covered employers to submit EEO-1 reports to the Commonwealth on an annual basis. As the Feb. 3, 2025, deadline to file EEO-1 reports nears, the Executive Office of Labor and Workforce Development has released frequently asked questions (FAQs) to help employers comply with the wage data reporting aspect of the new law.
Key Takeaways
The Massachusetts pay transparency law was drafted to mirror the Equal Employment Opportunity Commission’s (EEOC’s) reporting requirements, including a prior wage data reporting obligation that entailed submitting W-2 income earnings by race/ethnicity, sex, and job category. Significantly, the EEOC has not required the wage data reporting component since 2018. Thus, the FAQs confirm that the Commonwealth will still accept EEO-1 reports and will not require any additional information at this time.
Only employers with at least 100 employees in the Commonwealth at any time during the prior calendar year are subject to the reporting requirement (the threshold drops to 25 for the disclosure of pay ranges in job postings).
The statute provides that the initial wage data report is due by Feb. 1, 2025, and annually on the same date thereafter. If the deadline falls on a weekend or holiday, however, it will be extended to the next business day. Since Feb. 1 falls on a Saturday this year, reports will be accepted until Monday, Feb. 3, 2025. The other EEO reports are due by the same deadline but on a biennial basis: EEO-3 and EEO-5 this year, and EEO-4 next year.
Employers must submit the report in PDF, JPG, or PNG format to the Secretary of State’s office through the web portal: EEO Wage and Workforce Data Reports.
By June 1, 2025, the Executive Office of Labor and Workforce Development will publish the inaugural wage and workforce data report.
In addition to the impending wage data reporting deadline, employers should continue to prepare for the pay disclosure requirements that go into effect in October 2025.
Employers should be reviewing (or implementing pay ranges) for various job categories and evaluating whether employees are properly compensated within the established pay ranges. We expect additional guidance on the pay disclosure requirements.
California Attorney General Issues Two Advisories Summarizing Law Applicable to AI
If you are looking for a high-level summary of California laws regulating artificial intelligence (AI), check out the two legal advisories issued by California Attorney General Rob Bonta. The first advisory is directed at consumers and entities about their rights and obligations under the state’s consumer protection, civil rights, competition, and data privacy laws. The second advisory focuses on healthcare entities.
“AI might be changing, innovating, and evolving quickly, but the fifth largest economy in the world is not the wild west; existing California laws apply to both the development and use of AI.” Attorney General Bonta
The advisories summarize existing California laws that may apply to entities who develop, sell, or use AI. They also address several new California AI laws that went into effect on January 1, 2025.
The first advisory points to several existing laws, such as California’s Unfair Competition Law and Civil Rights Laws, designed to protect consumers from unfair and fraudulent business practices, anticompetitive harm, discrimination and bias, and abuse of their data.
California’s Unfair Competition Law, for example, protects the state’s residents against unlawful, unfair, or fraudulent business acts or practices. The advisory notes that “AI provides new tools for businesses and consumers alike, and also creates new opportunity to deceive Californians.” Under a similar federal law, the Federal Trade Commission (FTC) recently ordered an online marketer to pay $1 million resulting from allegations concerning deceptive claims that the company’s AI product could make websites compliant with accessibility guidelines. Considering the explosive growth of AI products and services, organizations should be revisiting their procurement and vendor assessment practices to be sure they are appropriately vetting vendors of AI systems.
Additionally, the California Fair Employment and Housing Act (FEHA) protects Californians from harassment or discrimination in employment or housing based on a number of protected characteristics, including sex, race, disability, age, criminal history, and veteran or military status. These FEHA protections extend to uses of AI systems when developed for and used in the workplace. Expect new regulations soon as the California Civil Rights Counsel continues to mull proposed AI regulations under the FEHA.
Recognizing that “data is the bedrock underlying the massive growth in AI,” the advisory points to the state’s constitutional right to privacy, applicable to both government and private entities, as well as to the California Consumer Privacy Act (CCPA). Of course, California has several other privacy laws that may need to be considered when developing and deploying AI systems – the California Invasion of Privacy Act (CIPA), the Student Online Personal Information Protection Act (SOPIPA), and the Confidentiality of Medical Information Act (CMIA).
Beyond these existing laws, the advisory also summarizes new laws in California directed at AI, including:
Disclosure Requirements for Businesses
Unauthorized Use of Likeness
Use of AI in Election and Campaign Materials
Prohibition and Reporting of Exploitative Uses of AI
The second advisory recounts many of the same risks and concerns about AI as relevant to the healthcare sector. Consumer protection, anti-discrimination, patient privacy and other concerns all are challenges entities in the healthcare sector face when developing or deploying AI. The advisory provides examples of applications of AI systems in healthcare that may be unlawful, here are a couple:
Denying health insurance claims using AI or other automated decisionmaking systems in a manner that overrides doctors’ views about necessary treatment.
Use generative AI or other automated decisionmaking tools to draft patient notes, communications, or medical orders that include erroneous or misleading information, including information based on stereotypes relating to race or other protected classifications.
The advisory also addresses data privacy, reminding readers that the state’s CMIA may be more protective in some respects than the popular federal healthcare privacy law, HIPAA. It also discusses recent changes to the CMIA that require providers and electronic health records (EHR) and digital health companies enable patients to keep their reproductive and sexual health information confidential and separate from the rest of their medical records. These and other requirements need to be taken into account when incorporating AI into EHRs and related applications.
In both advisories, the Attorney General makes clear that in addition to the laws referenced above, other California laws—including tort, public nuisance, environmental and business regulation, and criminal law—apply to AI. In short:
Conduct that is illegal if engaged in without the involvement of AI is equally unlawful if AI is involved, and the fact that AI is involved is not a defense to liability under any law.
Both advisories provide a helpful summary of laws potentially applicable to AI systems, and can be useful resources when building policies and procedures around the development and/or deployment of AI systems.
New Jersey AG Says Anti-Discrimination Law Covers Algorithmic Discrimination
Last week, New Jersey Attorney General Matthew Platkin announced new guidance that the New Jersey Law Against Discrimination (LAD) applies to algorithmic discrimination, i.e., when automated systems treat people differently or negatively based on protected characteristics. This can happen with algorithms trained on biased data or with systems designed with biases in mind. LAD prohibits discrimination based on a protected characteristic like race, religion, national origin, sex, pregnancy, and gender identity, among other things. According to the guidance, employers, housing providers, and places of public accommodation who make discriminatory decisions using automated decision-making tools, like artificial intelligence (AI), would violate LAD. LAD is not an intent-based statute. Therefore, a party can violate LAD even if it uses an automated decision-maker with no intent to discriminate or uses a discriminatory algorithm developed by a third party. The guidance does not create any new rights or obligations. However, in noting that the law covers automated decision-making, the guidance encourages companies to carefully design, test, and evaluate any AI system they seek to employ to help avoid producing discriminatory impacts.
State and Local Sexual Harassment Prevention Training Requirements
Educating employees about sexual harassment — what it is, that it is unlawful, that your organization won’t tolerate it, how to prevent it, how to respond to it, etc. — can contribute to safer and more productive workplace, plus reduce exposure to successful harassment claims. Recognizing that, on their own, many employers have implemented sexual harassment prevention training programs.
In several jurisdictions, however, such programs are not a matter of choice. Instead, the jurisdiction mandates them. Others encourage employers to adopt them. Here is an overview.
California
Under California Code §12905.1, California Code, GOV 12950.1, employers with five or more employees must give California-based employees sexual harassment and abusive conduct prevention training; one hour every two years for non-supervisory employees and two hours every two years for supervisors. New supervisors must be trained withing six months after they assume their supervisory responsibilities. Employers must train non-supervisors within six months after their hire date.
The training must include information and practical guidance on federal and state prohibitions against and the prevention and correction of sexual harassment, as well as the remedies available to its victims. The training also must include practical examples aimed at helping supervisors to prevent harassment, discrimination, and retaliation, and must be presented by trainers or educators with knowledge and expertise on those topics.
California’s Civil Rights Department offers on-line sexual harassment and abusive conduct prevention courses that satisfy the training requirement. See Sexual Harassment Prevention Training – Landing page | CRD. Employers, however, may satisfy the requirement through other methods, so long as the training is effective and interactive, which may include any of the following:
In person classroom training, consisting of content that is created and delivered by a qualified trainer and provided to employees in a setting removed from their daily duties.
Individualized, interactive, and computer-based e-learning that contains content created by a qualified trainer. This form of training must include directions on how to contact a trainer, who must be available to answer questions and provide guidance within two business days. Also, the trainer must maintain a record of all written questions received and all written responses given for two years after the response date.
Webinar training, consisting of an internet-based seminar that contains content created and taught by a qualified trainer and digitally transmitted in real time.
Other “effective and interactive” training and education that includes the use of audio, video, and computer technology in conjunction with classroom, webinar, and/or e-learning.
To employees hired for less than six months, employers must provide the training within 30 calendar days after the employees’ hire date or 100 hours worked, whichever is earliest. The training mandate doesn’t apply to employees employed for fewer than 30 days and who work fewer than 100 hours. If an employee is hired to work for less than six months but has not worked in 30 calendar days after being hired, the employee’s hire date is their first day of work. For temporary workers employed by a temporary services employer, as defined in Section 201.3 of California’s Labor Code to perform services for clients, the temporary services employer, not the client, is responsible for providing the required training.
An employee who (1) has received the mandated training within the prior two years while working for a current, prior, alternate, or joint employer; or (2) received a valid work permit from California’s Labor Commissioner that required the employee to receive compliant training within the prior two years, must read and acknowledge receipt of the employer’s anti-harassment policy within six months after the employee assumes their new position. The employer is responsible for ensuring that the prior training is legally compliant and, if so, must place the employee on a two-year tracking schedule based on their last training.
For at least two years an employer must keep on its premises documentation of the training that it has provided, including each trainee’s name, training dates, sign-in sheets (if used), certificates of attendance or completion (if issued), the type of training, all written or recorded materials that comprise the training, and each trainer’s name.
See Cal. Code Regs. Tit. 2, § 11024 – Required Training and Education Regarding Harassment Based on Sex, Gender Identity, Gender Expression, and Sexual Orientation | State Regulations | US Law | LII / Legal Information Institute.
Chicago
Chicago’s General Human Rights Act — 6-10-040 Sexual harassment — mandates that employers require their employees to participate in annual sexual harassment prevention and bystander intervention training:
For rank-and-file employees, at least one hour of sexual harassment training and one hour of bystander intervention training.
For supervisors and managers, at least two hours of sexual harassment prevention and one hour of bystander intervention training.
For the annual required sexual harassment prevention training, employer mays use Illinois’ model. See Sexual Harassment Prevention Training Videos and Audio. Or they may develop their own training program that meets the or exceeds Illinois Human Rights Act’s (IHRA) minimum standards, which include:
An explanation of sexual harassment consistent with the IHRA.
Examples of conduct that constitutes unlawful sexual harassment.
A summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to sexual harassment victims.
A summary of an employer’s responsibility to prevent, investigate, and correct sexual harassment.
For at least five years, or for the duration of any sexual harassment claim, civil action, or investigation, an employer must maintain records necessary to demonstrate compliance with the training requirement. Failure to do so creates a presumption, rebuttable by clear and convincing evidence, that the employer didn’t comply.
Connecticut
Connecticut’s Time’s Up Act — AN ACT COMBATTING SEXUAL ASSAULT AND SEXUAL HARASSMENT; AN ACT CONCERNING SEXUAL HARASSMENT AND SEXUAL ASSAULT — requires employers with three or more employees at any location to provide two hours of sexual harassment prevention training to Connecticut-based employees. The training must include information concerning the federal and state prohibitions against sexual harassment and remedies available to sexual harassment victims. Employers may satisfy the requirement by requiring employees to watch a video that the state’s Commission on Human Rights and Opportunities (CHRO) has published. See CHRO Sexual Harassment Prevention Training (Page 1 of 13).
Covered employers, however, need not use the video. They may provide an alternative if it contains the following necessary elements:
A description of all applicable federal and state statutory provisions that prohibit workplace sexual harassment.
The definition of sexual harassment contained in Section 46a-60 of Connecticut’s anti-discrimination statute — Chapter 814c – Human Rights and Opportunities — and as distinguished from other types of prohibited forms of harassment.
A discussion of the types of conduct that may constitute unlawful sexual harassment, including that the harasser or the victim of harassment may be either a man or a woman and that harassment can occur involving individuals of the same or opposite sex.
A description of the remedies available in sexual harassment cases, including cease and desist orders; hiring, promotion or reinstatement; compensatory damages; and back pay.
Instruction that harassers may be subject to civil and criminal penalties.
A discussion of strategies to prevent workplace sexual harassment.
The training also may include the following additional elements:
Instruction that all sexual harassment complaints must be taken seriously, and that once a complaint is made, supervisory employees should report it immediately to designated officials, and that the contents of the complaint are personal and confidential and should be disclosed to no one other than those who need to know it.
Experiential exercises such as role playing, coed group discussions, and behavior modeling to facilitate understanding of what constitutes sexual harassment and how to prevent it.
Instruction on the importance of interpersonal skills such as listening and helping participants to understand what a person who is sexually harassed may be experiencing.
Instruction on the importance of preventive strategies to avoid the negative effects that sexual harassment has on the victim and workplace productivity due to interpersonal conflicts, poor performance, absenteeism, turnover, and grievances.
Instruction on the benefits of learning about and eliminating sexual harassment, which include a more positive work environment with greater productivity and potentially lower exposure to employer and individual supervisor liability.
Instruction on the employer’s policy against sexual harassment, including a description of the procedures available for reporting instances of sexual harassment and the types of disciplinary actions that can and will be taken against policy violators.
Discussion about the perceptual and communication differences among people and, in this context, the “reasonable woman” and “reasonable man” concepts that have developed in harassment cases.
For existing employees, with limited exceptions, employers had to provide the training by October 1, 2020. Employees hired after that date must receive the training within six months of their hire date.
If an employer has fewer than three employees, it must give all supervisors two hours of training. For existing supervisors, with limited exceptions, employers had to provide the training by October 1, 2020. Supervisors hired after that date must receive the training within six months of their hire date.
Employers must provide periodic supplemental training at least once every 10 years.
The CHRO encourages covered employers to maintain records concerning all provided training. Those records shall include:
The training curriculum or other documents sufficient to show the training content.
Each trainer’s name, address, and qualifications.
Each trainee’s name, title, and training date(s).
The CHRO encourages employers to maintain those records (1) for at least a year; or (2) if a discriminatory practice complaint is filed involving trained personnel, until the complaint is finally resolved. See Regulations of Connecticut State Agencies, Commission on Human Rights and Opportunities, Sexual Harassment Posting and Training Requirements, Tit 46, §46a-54-200, et al.
Delaware
Delaware’s Discrimination in Employment Act (DEA) requires employers with 50 or more employees in Delaware to provide interactive sexual harassment prevention training and education to their employees. For existing employees, with limited exceptions, employers had to provide the training by January 1, 2020, and every two years thereafter. Employees hired after that date must receive the training within one year from when their employment begins and every two years thereafter.
Training, for non-supervisory employees, must cover:
The illegality of sexual harassment.
The definition of sexual harassment, using examples.
The legal remedies and complaint process available to the employees.
Directions on how to contact Delaware’s Department of Labor, which administers the DEA.
The legal prohibition against retaliation.
Training for supervisors also must cover a supervisor’s responsibility to prevent and correct sexual harassment.
In determining whether they meet the 50-employee coverage threshold, employers should not count applicants or independent contractors. Also, employers need not train applicants, independent contractors, or employees employed continuously for less than six months. Only employment agencies need count and train employees that the agency places.
District of Columbia
The District’s Tipped Wage Workers Fairness Amendment Act — D.C. Law 22-196. Tipped Wage Workers Fairness Amendment Act of 2018. | D.C. Law Library — requires tipped wage businesses to provide sexual harassment training to their owners, operators, managers, and employees. The training must include how to respond to, intervene in, and prevent sexual harassment by co-workers, management, and patrons. And an Office of Human Rights (OHR)-certified trainer must provide the training.
For managers, owners, operators, and current employees, employers must provide the training every two years, in person, virtually, or through a recording.
Employers must provide the training to new employees within 90 days after hire unless the employee was trained elsewhere within the past two years.
Covered businesses that have been open since 2022 and have not provided the mandated training must do so as soon as possible.
Employers can contact OHR-certified trainers to schedule training sessions. OHR has published a list of certified training providers here..
Employers should submit a training completion report to [email protected] no later than 30 business days after completing the training. The certified trainer will provide a template for the report.
See TWWF Compliance and Training FAQ_TC_September 9, 2024.pdf.
Illinois
The IHRA — 775 ILCS 5/ Illinois Human Rights Act. —requires every employer with an employee working in Illinois to give (1) Illinois-based employees; and (2) employees who work elsewhere but who regularly interact with employees in the state, annual sexual harassment prevention training. Employers may use the state’s model training program. See Sexual Harassment Prevention Training Videos and Audio. Or they may develop their own program that meets the IHRA’s minimum standards, which include:
An explanation of sexual harassment consistent with the IHRA.
Examples of conduct that constitutes unlawful sexual harassment.
A summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to sexual harassment victims.
A summary of an employer’s responsibility to prevent, investigate, and correct sexual harassment.
Restaurants and bars also must cover:
Specific conduct, activities, or videos related to the restaurant or bar industry.
An explanation of manager liability and responsibility under the law.
English and Spanish language options.
Also, restaurants and bars must establish a written sexual harassment prevention policy, in English and Spanish, and provide a copy to their employees within their first calendar week of employment. The policy must:
Prohibit sexual harassment.
Define sexual harassment under the IHRA and Title VII.
Provide details on how an individual can report sexual harassment internally, including options for making a confidential report to a manager, owner, corporate headquarters, human resources department, or other internal reporting mechanism that may be available.
Explain the internal complaint process available to employees.
Explain how to contact and file a charge with the IDHR and the EEOC.
Prohibit retaliation for reporting sexual harassment allegations.
Require all employees to participate in sexual harassment prevention training.
Employers need not train independent contractors. But the IDHR strongly advises employers to do so if the independent contractors work at the employer’s workplace or interact with the employer’s staff.
The IDHR also encourages employees to retrain new employees, even if they were trained elsewhere. Employers must retain records to show that all employees received the required sexual harassment prevention training. Employers may ask employees to document that they completed the training elsewhere. However, employers must ensure that the training meets the IHRA’s minimum standards. If the employer is unable to obtain the proper documentation, it must retrain the employee.
Covered employees must memorialize all training, on paper or electronically, and must make the records available for IDHR inspection upon request. This record may be a certificate or a signed employee acknowledgement.
Maine
Maine requires employers with 15 or more employees to conduct an education and training program for all new employees within one year from when their employment begins. The training must include written notice that sexual harassment is unlawful; the state’s definition of sexual harassment; a description of sexual harassment, utilizing examples; the employer’s internal complaint process; the legal recourse and complaint process available through Maine’s Human Rights Commission; directions on how to contact the Commission; and the legal prohibition against retaliation. Employers must conduct additional training for supervisory and managerial employees within one year from when their employment begins. That training must include, at a minimum, their specific responsibility, and methods that those employees must take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints. Employers must keep a record of the training, including a record of employees who received it. Employers must maintain training records for at least three years and must make them available to Maine’s Department of Labor’s inspection upon request. See Title 26, §807: Requirements.
Massachusetts
Massachusetts encourages employers to conduct an education and training program for new employees, within one year after their employment begins. General Law – Part I, Title XXI, Chapter 151B, Section 3A. At minimum, the program should include:
A statement that workplace sexual harassment is unlawful.
A statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of a complaint for sexual harassment.
A description and examples of sexual harassment.
A statement of the range of consequences for employees found to have committed sexual harassment.
A description of the process for filing internal complaints about sexual harassment and the work addresses and telephone numbers of the person or persons to whom complaints should be made.
The identity of the appropriate state and federal employment discrimination enforcement agencies, and directions as to how to contact them.
See https://www.mass.gov/doc/mcad-guidelines-on-harassment-in-the-workplace/download.
New York City
The city’s Stop Sexual Harassment in New York City Act —Local_Law_96.pdf — requires employers with at least 15 employees (including independent contractors), or at least one domestic worker, to provide annual sexual harassment prevention training to all employees. Employers may utilize the New York City Commission on Human Rights’ online program. See sexual-harassment-training. Or they utilize their own training program if it includes the following elements:
An explanation of sexual harassment as a form of unlawful discrimination under local law.
A statement that sexual harassment is also a form of unlawful discrimination under state and federal law.
A description, using examples, of what sexual harassment is.
Any internal complaint process available to employees through their employer to address sexual harassment claims.
The complaint process available through the city’s Commission on Human Rights, the New York State Division of Human Rights, and the US Equal Employment Opportunity Commission, including contact information.
The prohibition of retaliation including examples.
Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention.
The specific responsibility of supervisory and managerial employees to prevent sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints.
Employers should provide training to new staff as soon as possible after hire.
For at least three years, employers must keep a record of all training, including a signed employee acknowledgement. The records may be kept electronically. The certificate of completion provided at the end of the Commission’s training meets this requirement. Such records must be made available for Commission inspection upon request.
The training mandate extends to short-term employees, part-time employees, and interns if they work (1) more than 80 hours in a calendar year; and (2) for at least 90 days.
Likewise, the mandate extends to independent contractors who work for an employer of 15 or more people and work (1) more than 80 hours in a calendar year; and (2) for at least 90 days (does not need to be consecutive), or work for an employer as a full-time or part-time domestic worker.
Independent contractors need not take the training at each workplace where they work over the course of a year. Instead, they may provide proof that they have completed one sexual harassment prevention training to multiple workplaces.
Similarly, if an employee was trained at a different employer during the calendar year, they need not be retrained. Employers, however, must independently retain their own records to show that all employees have met the training requirement. Employers may ask employees to document their prior training. If an employee doesn’t do so, however, the employers should retrain them.
The training mandate applies to all employees who work or will work in New York City for more than 80 hours in a calendar year and for at least 90 days, regardless of whether the employer is based in New York City. The mandate extends as well to employees based elsewhere but regularly interact with other employees in New York City.
Employers must provide the training in an accessible manner, including to employees with disabilities and who speak a language other than English.
See Sexual Harassment Training FAQs.
New York State
New York Labor Law Section 201-g requires all employers in the state to give employees sexual harassment prevention training. Employers may use the model training that the state’s Department of Labor, Division of Human Rights has developed: Sexual Harassment Prevention Model Policy and Training. Or they may use their own training program, provided that the program meets or exceeds the following minimum standards.
That training must:
Be interactive.
For example:
If the training is web-based, it must have questions at the end of a section and the employee must select the right answer.
If the training is web-based, the employees must have an option to submit a question online and receive an answer immediately or in a timely manner.
In in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions.
Web-based or in-person training must provide a feedback survey for employees to submit after they have completed the training.
Training in which an individual watching a training video or reading a document only, with no feedback mechanism or interaction, is not sufficient.
Include an explanation of sexual harassment consistent with the Department’s guidance.
Include examples of conduct that constitute unlawful sexual harassment.
Include information concerning the federal and state statutory provisions that address sexual harassment and remedies available to sexual harassment victims.
Include information concerning employees’ rights of redress and all available forums for deciding complaints.
Include information addressing conduct by supervisors and any additional supervisory responsibilities.
The training is due when employees are hired and annually thereafter.
Employers may use a third-party vendor or organization or deliver the training. But employers should review any third-party training to ensure it meets or exceeds the minimum standards.
Employers must provide the training in both English and in an employee’s primary language if it is Spanish, Chinese, Korean, Polish, Russian, Haitian-Creole, Bengali, Urdu, French, Italian, Japanese, Hindi, Albanian, and Greek. Model templates are available online.
For the purposes of the training mandate, the term “employee” includes all workers, regardless of immigration status. The term also includes exempt and non-exempt employees, part-time and seasonal workers, and temporary workers.
Employers are encouraged to keep a signed acknowledgment and a copy of training records. Such records may be helpful in addressing any future complaints or lawsuits.
See Frequently Asked Questions.
Rhode Island
Rhode Island encourages employers to conduct a sexual harassment education and training program that is consistent with the state’s anti-discrimination law’s aims and purposes. At a minimum, the training should include:
A statement that workplace sexual harassment is unlawful.
A statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of a sexual harassment complaint.
A description and examples of sexual harassment.
A statement of the range of consequences for employees found to have committed sexual harassment.
A description of the process for filing internal sexual harassment complaints and the work addresses and telephone numbers of the person or persons to whom complaints should be made.
The identity of the appropriate state and federal employment discrimination enforcement agencies, and directions on how to contact these agencies.
General Laws of Rhode Island Section 28-51-3. (2023) – Education and training programs. :: 2023 Rhode Island General Laws :: US Codes and Statutes :: US Law :: Justia.
Vermont
Vermont encourages employers to conduct an education and training program for all new employees that includes, at a minimum:
A statement that sexual harassment in the workplace is unlawful.
A statement that it is unlawful to retaliate against an employee for filing a sexual harassment complaint or for cooperating in a sexual harassment investigation.
A description and examples of sexual harassment.
A statement of the range of consequences for employees who commit sexual harassment.
If the employer has more than five employees, a description of the process for filing internal complaints about sexual harassment and the names, addresses, and telephone numbers of the person or persons to whom complaints should be made.
The complaint process of the appropriate state and federal employment discrimination enforcement agencies, and directions on how to contact those agencies.
Employers should provide the training to new employees within one year after they commencement employment and annually thereafter.
Vermont also encourages employers to provide additional training to new supervisory and managerial employees, within one year after they commencement employment. That training should include the information outlined above as well as the specific responsibilities of supervisory and managerial employees, and the actions that they must take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints.
Takeaway
To promote a safer and more respectful workplace and minimize the risk of successful sexual harassment claims, employers are well advised to train their employees about sexual harassment training. Also, depending on the jurisdiction in which your organization operates, the law may mandate or encourage such training, its content, its schedule, the trainees, and the people to train them. Nine states, Chicago, the District of Columbia, and New York City have issued such enactments. Doubtlessly, other jurisdictions will follow suit.