#MeToo Update: States Enact New Sexual Harassment Laws—But More is Needed

#MeToo Update: States Enact New Sexual Harassment Laws—But More is Needed
Women’s March, New Jersey 2018. (Joan Eddis-Koch / Flickr)

Nineteen states have adopted new sexual harassment protections over the last three years—but we still have a long way to go, says a new report released by the National Women’s Law Center (NWLC).

The report provides an overview of the legislative progress made to strengthen workplace harassment reforms since #MeToo went viral with Alyssa Milano’s #MeToo tweet in October of 2017. (Activist Tarana Burke had begun using the phrase “Me Too” in 2006 to raise awareness of women who had been abused.)

#MeToo ignited a renewed push for better laws to combat sexual harassment and assault in the workplace. Women in agriculture, retail, tech, law and many other fields joined Hollywood actors in speaking out and organizing for a range of reforms. Women pushed for laws to cover more workers, prohibit more harassing behaviors, provide more compensation for harm, extend the time to file complaints, and end mandatory arbitration requirements in employment contracts.

Three years later, more than a third of states have adopted new protections, from Oregon and Vermont and to Tennessee and Louisiana.

“This is a pretty remarkable amount of progress in a short window of time,” says Andrea Johnson, NWLC’s director of state policy for workplace justice and cross-cutting initiatives.

Nearly 400 state legislators from 42 states and D.C. and from both sides of the political divide have joined the #20Statesby2020 pledge, declaring their commitment to support and work with survivors to strengthen protections against sexual harassment in 20 states by 2020. Legislators have introduced more than 230 bills over the last three years.

Some of the major trends include:

  • 15 states limited or prohibited employers from requiring employees to sign nondisclosure agreements (NDAs) as a condition of employment or as part of a settlement agreement.
  • 11 states and New York City implemented or strengthened anti-harassment training requirements for certain employers.
  • 7 states enacted measures to require or encourage employer anti-harassment policies.
  • 7 states limited employers’ use of forced arbitration, though several of these laws are being challenged in court.
  • 6 states expanded workplace harassment protections to include independent contractors, interns, and/or volunteers for the first time.
  • 5 states and New York City extended their statute of limitations for filing a harassment or discrimination claim.

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Other laws prohibit no-rehire provisions in settlement agreements, protect workers who speak up from defamation lawsuits, require employer transparency about harassment claims, and limit the use of public funds in settlements involving public officials.

Just in 2020, eight states passed new sexual harassment protections, including South Dakota covering interns, Hawai’i and New Mexico limiting NDAs, and New York protecting survivors from defamation lawsuits weaponized by sexual harassers to silence survivors.

Louisiana passed a law that non-profit organizations cannot be held liable for disclosing to a prospective employer, in good faith, information about a former employee, volunteer, or independent contractor engaging in sexual harassment or assault.

New Jersey created a confidential hotline for state employees to report incidents of workplace harassment and discrimination and to receive assistance.

Virginia prohibited discrimination and harassment based on sexual orientation and gender identity, and removed caps for compensatory and punitive damages to address victims’ injuries.

California has passed some of the nation’s strongest new sexual harassment laws. California attorney Barbara Figari says that her state’s new NDA law “has really allowed people to step into their own power and feel their own voice and make that choice themselves, which has been hugely impactful in regaining some of what was stolen by the harasser.”

California attorney Elizabeth Kristen of Legal Aid at Work says the state’s prohibition of no rehire clauses in settlements has been really important.

“It was awful to have clients sign these because they could basically be locked out of an entire industry,” says Kristen. “It has been very helpful to have really clear guidance on no-rehire clauses because it was so bad for workers in low-wage jobs and so potentially retaliatory.”

California also extended the time that workers have to bring suits against their employers from one to three years. California attorney Wendy Musell says that the extra time is “extremely helpful for low-wage workers, who … often need to make very difficult decisions: how you pay rent, put food on the table, versus  making a complaint. Having the additional time to stabilize their economic situations before they proceed is very important.”

Some States Slow to Adopt Reforms to Stop Harassment

#MeToo Update: States Enact New Sexual Harassment Laws—But More is Needed
Women’s March in Philadelphia, January 2018. (Wikimedia Commons)

Despite this progress, the report finds that states have been slow to adopt some of the reforms that promise to make the biggest difference for those most marginalized by harassment.

Since #MeToo went viral, only four states—Illinois, Maryland, New York, and Vermont—have extended protections to low-paid gig workers, domestic workers, home healthcare workers, and other workers who work for smaller employers or as independent contractors.

In some states, protections for low wage workers were actually rolled back, such as in D.C. and Michigan, which repealed measures to raise the tipped minimum wage, making workers more vulnerable to sexual harassment from customers.

Most reforms focus narrowly on sexual harassment, ignoring intersectional forms of harassment. Sexual harassment is often racialized, combining sexual abuse with racial slurs. Only New York has addressed these intersections so far by extending anti-harassment protections to cover race, ethnicity and gender identity.

“Going forward, my hope is that lawmakers really think about those who are most marginalized by harassment—workers in low wage jobs, women of color, LGBT Q folks, and folks with disabilities,” Johnson told Ms. “I hope lawmakers listen those most marginalized, how they are experiencing harassment and what solutions they need.”

Advocates are now pushing for survivor-led prevention measures such as peer-to-peer training and annual climate surveys. In September, activists from across the country met for a Survivors’ Summit and created a Survivors’ Agenda calling for centering the voices of survivors in the development of policy solutions for sexual harassment and assault.

Activists are continuing to push for stronger sexual harassment laws, but COVID-19 has stalled some of the momentum for Me Too reforms as legislators turn to COVID-relief measures. But in fact, the pandemic makes addressing sexual harassment all the more urgent.

“With both the COVID health crisis and the economic crisis, workers are so much more at risk of harassment, discrimination and exploitation,” Johnson told Ms.

The economic recession is hitting women hardest, especially low-income women, working moms, and women of color, forcing them to put up with harassment and abuse in order to keep their jobs. In some states, such as North Carolina, legislators are attempting to incorporate sexual harassment reform as part of their efforts to rebuild from COVID-19.

“We need these reforms now. And with COVID, it’s so much more important,” says Johnson. “We need to act urgently.”

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About

Carrie N. Baker, J.D., Ph.D., is a Professor in the Program for the Study of Women and Gender at Smith College. Her 2007 book The Women's Movement Against Sexual Harassment won the National Women’s Studies Association Sara A. Whaley Book Prize. Her second book, Fighting the U.S. Youth Sex Trade: Gender, Race, and Politics, tells the story of activism against youth involvement in the sex trade in the United States between 1970 and 2015. Baker is the President of the Abortion Rights Fund of Western Massachusetts.