Last week the CHRO released its case data for FY 2018.  Overall, the numbers do not dramatically differ from FY 2017.  However, perhaps not surprisingly given the media coverage of the viral #MeToo movement beginning in October 2017, some notable increases emerged.

The increase in the overall number of complaints filed in FY 2018 rose slightly from FY 2017 (up from 2376 to 2484).  While not alarming, in the past we have seen the number of complaints filed against employers drop during periods of low unemployment such as currently reflected in the U.S. labor market.

Historically, employment claims alleging discrimination based on race, age, physical disability, sex, and color make up the greatest percentage of CHRO complaints.  In FY 2018, however, the number of complaints based on sex jumped more than 20%, elevating sex discrimination complaints to the head of the pack while the number of complaints based on race, age, physical disability and color remained fairly consistent. Even more dramatically, the number of complaints alleging sexual harassment rose by nearly 62% over FY 2017.

The data in Connecticut mirrors national trends. The EEOC released preliminary FY 2018 sexual harassment data in early October showing that the Commission filed 66 harassment lawsuits, including 41 alleging sexual harassment, reflecting more than a 50% increase in suits challenging sexual harassment over FY 2017.    Charges filed with the EEOC alleging sexual harassment increased by more than 12% over the same time period.

The increase in sexual harassment claims and complaints based on sex discrimination coincides with the explosion of media headlines and high profile sexual harassment cases which sparked last year’s #MeToo movement.  Anecdotal information regarding the number of sexual harassment complaints filed with the CHRO in the current fiscal year suggests an even more dramatic rise in the number of these claims in the first half of FY 2019.

What’s the takeaway?

As legislative, legal and cultural shifts addressing sexual harassment in the workplace continue to develop, employers should brace for an increase in the number of sexual harassment and sexual discrimination claims.  However, maybe – just maybe – these shifts will result in long term changes to the culture that allowed this conduct to exist in the first place.

Employers should revisit, review and revise their company’s Sexual Harassment Prevention policy and ensure compliance with Connecticut’s sexual harassment prevention training requirements.  Perhaps more importantly, employers should strive to go beyond the legal requirements in addressing and responding to sexual harassment complaints, and seek to change workplace culture so that these – and other forms of discriminatory conduct – find zero tolerance in the workplace.

Employers with 50 or more employees in Connecticut must provide sexual harassment training to supervisors within six months of the individual assuming a supervisory position.  While other employers are not mandated to provide such training, it is strongly encouraged to do so. Refresher training is encouraged, but not required.  It is also beneficial to provide sexual harassment training to non-supervisory employees, although the content of the training should be tailored to the audience.  Supervisory employees should be told the extent of liability that may be incurred by the employer for successful harassment claims; employers probably do not want to instruct rank-and-file employees how to sue and collect significant damages.

Regulations of the Connecticut Commission of Human Rights and Opportunities require that the sexual harassment training contain certain specific elements.  Therefore, it is best to have a Connecticut employment attorney provide the training, rather than purchasing a generic training program.

Employers may also wish to include content on other types of harassment (such as harassment based on age, race, disability, or religion) and bullying, either as part of the training or as a separate program.  Unfortunately, bullying is a problem in many workplaces.  While it is harder for an employee to successfully sue an employer for bullying or harassment that is not based on a legally protected status, such conduct creates a significant drain on employers due to poor morale, the need to investigate and respond to complaints, and increased absenteeism.  Recently, our practice has seen a rash of requests for leave under the Family and Medical Leave Act and reasonable accommodations under the Americans with Disabilities Act for anxiety and post-traumatic stress disorder purportedly stemming from workplace interactions.

Everyone benefits when the workplace is a civil and safe place to be.  Employers should be sure to meet and preferably exceed the training requirements imposed by law.

Our team of labor and employment attorneys offers training on all topics affecting the workplace and can help customize programs to meet your unique needs.

According to a recent Los Angeles Times article, a California jury recently awarded a hospital employee $168 million, including $125 million in punitive damages, to a female physician assistant who endured two years of sexually inappropriate behavior and then was fired for reporting the harassment as well as patient care violations.  The perpetrators included cardiac surgeons.  The plaintiff claimed the hospital tolerated their behavior because of the large revenues they generated. 

The verdict, one of the largest ever recorded in a sexual harassment case, highlights the need to conduct regular training and education, to take seriously and investigate complaints, and to think long and hard about terminating or taking other action against an employee who has filed a sexual harassment complaint.