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.
On June 18, 2019, Connecticut Governor Ned Lamont signed Substitute Senate Bill 3, publicly known as the “Time’s Up” bill and identified as Public Act 19-16.1 The law significantly changes the sexual harassment laws affecting Connecticut employers. A majority of these provisions will go into effect as of October 1, 2019.
New Training Requirements
The first significant change affects an employer’s obligation to provide sexual harassment training. Beginning on October 1, 2019, all Connecticut employers will have to satisfy certain mandatory sexual harassment training requirements. The amount and timing of the training, however, will depend on the employer’s size. The requirements have expanded considerably from those previously imposed on employers with more than 50 employees.
Under the revised requirements, employers with three or more employees now must provide two hours of sexual harassment training to all employees. For existing employees, this training must be provided by October 1, 2020. All employees hired on or after October 1, 2019 must receive the training within six months of hire.
The bill also imposes new requirements on employers with fewer than three employees, including family businesses where an individual is employed by a spouse, parent or child. All Connecticut employers, regardless of size, are now required to provide sexual harassment training to supervisory employees. This is a meaningful departure from the previous requirements, which required such training only for employers with more than 50 employees in Connecticut. This training must be provided by October 1, 2020, or within six months of an employee assuming a supervisory role.
All training mandated by the Act must then be updated every 10 years. As a benefit to employers, the Connecticut Commission on Human Rights and Opportunities (CHRO) has been tasked with creating resources that employers can use to satisfy the training requirement for no cost.
Failure to provide the training as required will be considered a “discriminatory practice,” and will be subject to fines up to $1000, although it is unclear whether this fine will be imposed on a per-employee basis.
While employers were previously required to post information about the illegality of sexual harassment and about remedies available to victims of sexual harassment, employers are now required to provide, within three months after the employee’s start date with the employer, a copy of the information about the illegality of sexual harassment and remedies available to victims of sexual harassment to each employee. An employer may provide this information to an employee via electronic mail only if the employer has provided the employee with an electronic mail account or the employee has provided the employer with an electronic mail account. If an employer has not provided an electronic mail account to an employee, the employer must post this information on the employer’s internet website, if the employer maintains such a site. An employer may also comply with this requirement by providing an employee with the link to the CHRO’s website concerning the illegality of sexual harassment and the remedies available to victims of sexual harassment. Employers that fail to post or distribute such information will be subject to fines up to $1000.
In addition, within 12 months of a complaint being filed with the CHRO or where the CHRO’s executive director “reasonably believes” that the employer is in violation of the new posting and training requirements, the CHRO can now assign a designated representative of the CHRO to enter an employer’s place of business to ensure compliance with the posting requirements. This representative may also examine records, policies, procedures, postings and sexual harassment training materials maintained by the employer in connection with the requirements of the statute.
Expanded Protections for Employees Reporting Alleged Sexual Harassment
Effective October 1, 2019, Connecticut will impose additional requirements on how an employer must respond to complaints of alleged sexual harassment in the workplace. If an employer responds to the complaint by relocating the employee, changing his/her schedule or making any other modification to the terms and conditions of the employee’s employment, the employee must consent to the change in writing. This step will potentially serve to protect the employee and the employer by limiting the circumstances under which the employee can assert that the change was retaliatory. On the other hand, this provision will undoubtedly cause issues for the employer if the employee refuses to consent to the employer’s change to the employee’s working conditions, proposed in an attempt to address the employee’s complaint. It raises the question—how far must an employer go to appease an employee unwilling to accept an employer’s proposed resolution to his/her complaint? However, Public Act 19-93 attempts to alleviate this situation by providing that the CHRO may find that the employer’s corrective actions were reasonable and not detrimental to the complainant based on evidence presented to the CHRO by the employer and the complainant.
Time to File Discrimination Complaints Expanded
Effective October 1, 2019, employees who believe they have been subjected to any discriminatory practice in violation of Connecticut law now have 300 days from the adverse action to file a complaint with the CHRO. This is a significant expansion of the prior 180-day time frame and aligns state law with the federal standard used by the Equal Employment Opportunity Commission. This expanded time frame applies to any discriminatory practice and is not limited solely to a claim of sexual harassment.
Potential Damages Expanded
The new law significantly expands the potential damages that can be assessed by the CHRO if it concludes that a discriminatory employment practice has occurred. Effective October 1, 2019, the CHRO can now award reasonable attorneys’ fees to a prevailing complainant. The new legislation expressly states that the amount allowed will not be contingent on the amount of damages requested or awarded to the complainant. This change opens the door for situations where the attorney fee award is the largest component of an overall damage award.
The CHRO is also now authorized to assign Commission Counsel to bring a civil action in Connecticut Superior Court instead of proceeding to an administrative hearing following a reasonable cause finding. As this is a brand-new development, it is unclear at this time under what circumstances, if any, this option will be used. However, where the Superior Court finds that an employer has committed a discriminatory practice, the court shall grant the CHRO a civil penalty, not exceeding $10,000, provided such discriminatory practice has been established by clear and convincing evidence. The amount shall be payable to the CHRO and be used by the agency to advance the public interest in eliminating discrimination.
Finally, the new law expands the damages available if a complaint is filed in court. Prevailing plaintiffs may now be awarded punitive damages, which is a drastic change from prior Connecticut Supreme Court precedent that prohibited such an award.
This new legislation has resulted in many significant changes that will substantially affect Connecticut employers. Employers should be cognizant of the new requirements, particularly the training and posting requirements.
1 Public Act 19-93 subsequently amended several provisions codified in PA 19-16.