A bipartisan group of U.S. lawmakers have introduced House and Senate bills that seek to further deter workplace sexual harassment by: (1) banning non-disclosure and non-disparagement clauses in employment contracts, and limiting the use of such clauses in settlement agreements; (2) requiring public companies to provide annual reports to the Securities and Exchange Commission disclosing details about workforce harassment settlements and judgments; and (3) establishing a confidential tip line for employees to report harassment to the Equal Employment Opportunity Commission. FN1 The House bill further would prohibit companies from claiming tax deductions for legal fees connected with lawsuits related to workplace harassment, adding to the Republican tax bill eliminating tax deductions for settlements related to complaints of sexual harassment. FN2
Combatting and preventing workplace harassment remains a key issue for U.S. workers, employers, and lawmakers. Employers should consider examining their anti-harassment and reporting policies and procedures, as well as their training practices, to help foster a positive workplace culture and, in turn, minimize exposure to harassment claims. We will keep you posted of legislative developments in Congress and at the state level.
FN1: H.R. ___, 115th Cong. (2nd Sess. 2018) (as introduced on July 18, 2018), http://src.bna.com/AsO; Ending the Monopoly of Power Over Workplace Harassment Through Education and Reporting Act, S. 2994, 115th Cong. (2nd Sess. 2018) (as introduced by Senate on June 5, 2018), https://www.congress.gov/115/bills/s2994/BILLS-115s2994is.pdf; see also Sunlen Serfaty, Congress slowly working behind the scenes to reconcile 2 bills on sexual harassment, CNN (July 4, 2018), https://www.cnn.com/2018/07/04/politics/sexual-harassment-legislation-congress/index.html; Hasan A. Kanu and Tyrone Richardson, #MeToo Bill Adds Transparency to Workplace Harassment Cases (1), Bloomberg Law (July 18, 2018) https://news.bloomberglaw.com/daily-labor-report/metoo-bill-adds-transparency-to-workplace-harassment-cases-1
FN2: Specifically, Section 13307 of the Tax Cuts and Jobs Act provides that “No deduction shall be allowed under this chapter for (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.” Lisa Miliam-Perez, J.D., Tax bill scraps employer deductions for sexual harassment settlements with NDAs attached, Wolters Kluwer, http://www.employmentlawdaily.com/index.php/news/tax-bill-scraps-employer-deductions-for-sexual-harassment-settlements-with-ndas-attached/.