Senate Democrats Preview Workplace Harassment Agenda

Senator Patty Murray (D-WA), the ranking Democrat on the U.S. Senate’s Committee on Health, Education, Labor and Pensions – the committee with oversight of federal anti-discrimination law – has released recommendations for legislative action to combat unlawful workplace harassment.  While most of these recommendations are unlikely to see legislative action in the next Congress, they clearly lay out a blueprint of where Senate Democrats (and House Democrats, who will hold the majority in the lower chamber of Congress come January) are likely to focus attention on issues relating to workplace harassment and the continued #MeToo movement.

Murray’s report, entitled “So I Tolerated It:  How Workplaces are Responding to Harassment and the Clear Need for Federal Action” uses the #MeToo movement to set forth a series of recommendations to amend federal employment law, and more broadly to argue for legislative efforts to promote workplace “justice.”  While some recommendations are geared directly toward harassment prevention, others represent broader workplace initiatives traditionally favored by organized labor and its supporters.

The recommendations in Murray’s report give employers a clearer view of where the push for legislative change will come, and what issues congressional Democrats and organized labor will stress in the next Congress, and in the lead-up to the 2020 presidential elections. Particularly in the U.S. House, where Republicans will lose the majority next year, Murray’s report offers valuable insight into legislative and oversight priorities.

The findings in Murray’s report are based on, among other things, detailed requests for information sent to a variety of trade associations concerning their (and their members’) anti-harassment efforts.  As the next Congress is expected to engage in aggressive oversight, it is likely that similar requests to organizations – and individual companies and employers – may well follow.

Among the most salient recommendations in the report are:

  • Employers should adopt and implement workforce harassment and discrimination policies based on best practices, and should train workers and supervisors on how to prevent and address harassment in the workplace (a practice in which most employers covered under federal or state anti-discrimination law are likely to already engage);
  • Congress should eliminate the tipped minimum wage, and strengthen workers’ rights to join unions and bargain collectively;
  • Congress should expand anti-discrimination law to include all employers, no matter their size, and all workers, whether classified as “employees” or otherwise;
  • Congress should amend Title VII of the Civil Rights Act to expressly provide for protection of LGBTQ individuals;
  • Congress should broaden the definition of unlawful harassment, and extend the statute of limitations for bringing workplace harassment claims; and
  • Mandatory arbitration and pre-employment nondisclosure agreements should be prohibited under federal law.

Murray’s report broadly indicates that harassment and the #MeToo movement will continue to be a focus of congressional attention.  In light of Congress’s recent actions to strengthen its own in-house protections for congressional employees, we predict that efforts to reform anti-harassment law – or to leverage the current climate toward broader legislative action – will be at the forefront of discussion of workplace policy.  Littler’s Workforce Policy Institute will continue to monitor these efforts and apprise of relevant developments.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.