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As Anonymous Workplace Harassment Cases Double Expect More States to Enact Stricter Harassment Prevention Laws for 2020

According to a Bloomberg law analysis, anonymous workplace harassment cases more than doubled in 2018 from the previous year (52 in 2018 vs. 24 in 2017). Some legal experts claim employees face public humiliation, possible retaliation, and career suicide when their identities are revealed in a sexual harassment case.  Knowing the plaintiff’s identity gives companies leverage if the case opts for arbitration and perpetuates a culture of fear where other victims may not come forward. Other experts state that pseudonyms do not allow for transparency in the court system. Shouldn’t defendants and their employers have a right to know their accuser’s identity? Should EEOC retaliation protections be updated in the #MeToo era?

In the analysis by Bloomberg Law and their review of court documents, federal courts require plaintiffs to show exceptional justification when using a pseudonym. Justifications only apply when issues are extremely sensitive, personal, or in cases where physical harm may occur. But an EEOC review of case after case over a two-year period demonstrated that the ultimate decision on anonymity is really up to the judge.  Would identifying the victim in a workplace sexual harassment suit damage their life and career? Most likely. However, anonymity creates a precedent for every case thereafter.

Transparency All-Around

Employers, large and small, argue that their reputations also are on the line in a workplace harassment case.  Legal professionals for employers argue that they can prepare a more accurate, thorough case when the plaintiff has been identified.  They also argue that victims of sexual harassment have the choice to seal proceedings if it is too sensitive or if public acknowledgment presents a harmful situation. It’s simple for employment attorneys to file a workplace harassment case under a pseudonym, and then petition the court to proceed. Yet, when a judge decides to reveal a victim’s identity or an employer requests total transparency, a company is more likely to push for the plaintiff to either drop or settle the case out of court.

In one such case against a New York Toyota dealer, the judge denied anonymity to an alleged victim, who was not only subjected to sexually explicit comments about her body by her attacker and co-workers but was also drugged and raped. Nevertheless, some states, like Illinois, have already updated and enacted several laws for 2020, including the Workplace Transparency Act (WTA). This act limits employers’ ability to use confidentiality provisions in arbitrating sexual harassment violations and applies to employment contracts initiated, updated, or extended on or after January 1, 2020.

Expect New Sexual Harassment State Laws for 2020

Driven by increasing allegations of sexual misconduct in the workplace, states across the country are addressing their concerns and generating awareness around the issue with new sexual harassment laws. According to the National Law Review, California and New York have already enacted a stringent set of laws against workplace sexual harassment that took effect in January 2020. California has made sexual harassment training a requirement for employers with five or more employees, and employees must undergo harassment prevention training once every two years. Also, the governor has rescinded the ‘no rehire’ clause that states settlement agreements can no longer contain a provision that prevents or restricts an alleged victim of harassment who filed a claim against their employer from seeking or obtaining future employment. Likewise, the state of New York has updated its workplace Sexual Harassment law, which includes all employers to have a sexual harassment prevention policy in place and to provide yearly training. Resources on the policy can be in print or digital and given to employees upon hire. New York’s law further requires companies to designate a department or individual where employees can file their complaints or ask questions. Currently, the EEOC has released best practices for the prevention of harassment. While these practices are not legally binding, they may provide businesses with the needed resources to meet compliance. Based on the report from the EEOC’s Select Task Force on the Study of Harassment in the Workplace, checklists exist based on the five principles provided and can be found in the report. These best practices are meant to provide a proactive, consistent approach to stopping harassment in the workplace before it starts.