jenny yang ncsl base camp 2020 harassment, discrimination and diversity workplace

Clockwise from top left, Jenny Yang of the Urban Institute, NCSL's Suzanne Hultin and Jessica Stender of Equal Rights Advocates discuss harassment, discrimination and diversity at NCSL Base Camp 2020.

NCSL Base Camp 2020 | State Actions to Create Safe and Inclusive Workplaces

By Mark Wolf | Sept. 24, 2020 | State Legislatures Magazine

Sexual harassment encompasses a lot more than sex.

In addition to shining a spotlight on horrendous personal behavior, the #MeToo movement launched a wide-ranging dialogue resulting in significant state legislation aiming to fill legal gaps in laws dealing with workplace inequities and discrimination.

That was the focus of an NCSL Base Camp 2020 session on “Harassment, Discrimination & Diversity: State Actions to Create Safe and Inclusive Workplaces.”

“We are coming up on three years since the Me Too movement went viral and it’s been energizing to see the leadership around the states to address some of the gaps in federal law that have allowed many egregious examples of harassment to come to life through the MeToo movement,” said Jenny Yang, a senior fellow in the Center on Labor, Human Services, and Population at the Urban Institute, and a former chair of the of the U.S. Equal Employment Opportunity Commission.

Many of the proposals that arose in the wake of MeToo focused narrowly on sexual harassment, she said, but lawmakers need to think more broadly because harassment is often a warning sign for broader equity issues including unequal pay, barriers to promotion, recruitment and hiring barriers and biased performance evaluations.

“A worker can experience racial and sexual harassment in the same workplace at the same time and it is impossible to separate that,” she said.

Yang and co-presenter Jessica Stender, senior counsel for workplace justice and public policy at Equal Rights Advocates, addressed a number of collateral issues that need to be addressed—and some states have addressed.

  • Prohibiting non-disclosure agreements (NDA) about settlements for all harassments, not just sexual, is crucial, said Yang, praising New Mexico for enacting that law. NDAs, she said, have chilled people from coming forward, even to enforcement agencies.
  • Mandating harassment training and improving it so it is not focused completely on compliance.
  • Anti-SLAPP (a strategic lawsuit against public participation) legislation to make it harder for people who have been accused to file defamation suits against workers.
  • Expanding the pool of workers covered by harassment laws to include independent contractors, interns, volunteers and graduate students.
  • Extending the statute of limitations for filing a harassment or discrimination claim.
  • Prohibit no-rehire clauses that say an employee can’t work again for the employer with whom she or he settled. With increasing consolidation of industries, an employee could actually be agreeing not to work in their field again.
  • Increasing access to justice so people who come forward can be assured something will come of their complaint. New Jersey created a state discrimination and harassment hotline to receive confidential complaints.
  • Protecting companies from telling prospective employers about a former employee’s harassment that can lead to predators jumping from employer to employer.
  • Discriminatory grooming, which has been addressed in CROWN acts.

“A lot has been focused on sexual harassment but that’s just one form,” said Stender, emphasizing the need “to extend legislation to other forms of harassment and discrimination: race, color, disability, religion, age and national origin to recognize the realities of the worker experience.”

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