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Written Testimony of Suzanne Hultin National Conference of State Legislatures

Commissioner Feldblum, Commissioner Lipnic and members of the Select Task Force on the Study of Harassment in the Workplace, thank you for inviting me here to speak today.

My name is Suzanne Hultin and I am a program director in the Employment, Labor & Retirement program at the National Conference of State Legislatures. The National Conference of State Legislatures (NCSL) is the professional development organization for all state legislators and legislative staff in the 55 states and territories. We are a bipartisan organization that provides research, technical assistance, professional development and opportunities for legislators and staff to exchange ideas. We also advocate on behalf of state legislatures before Congress.

One of NCSL's many services is tracking legislative trends across all 50 states. Over the last year and a half, we have seen growing interest from state legislatures around sexual harassment in the workplace, especially regarding the use of non-disclosure and arbitration agreements, as well as workplace training requirements and the creation of state task forces. I have been asked here today to share with this task force what we are seeing in states on these issues.

Much of the interest in sexual harassment policy has stemmed from the rise in the #metoo and #timesup movements alongside high profile sexual harassment allegations beginning in October 2017. These allegations have affected Hollywood, sports moguls, politicians and virtually all other workspaces. All of this has spurred state legislatures to reevaluate their laws on sexual harassment.

As you are all aware, Title VII of the Civil Rights Act recognizes sexual harassment as a form of sex discrimination and applies to private employers with 15 or more employees, as well as government and labor organizations. Due to this recent wave of sexual harassment accusations, many states are looking to go beyond federal regulations to prevent workplace sexual harassment. According to Bloomberg BNA, as of January 2018, 28 states and the District of Columbia had state laws on sexual harassment in the workplace. These laws vary widely to expand the coverage to employers with less than 15 employees, mandate training requirements or publicly display harassment policies, as well as identify enforcement procedures and penalties.

Over the last year and a half, NCSL has identified numerous trends in states as legislatures grapple with this issue. At least 20 states have introduced legislation in 2018 on workplace sexual harassment, most of those, at least 16 states, have introduced legislation specific to limiting or prohibiting non-disclosure agreements or ending forced arbitration agreements. So far, Arizona, Maryland, New York, Tennessee, Vermont and Washington have enacted legislation this year on non-disclosure agreements.

Some states have also introduced legislation requiring sexual harassment training for employers and employees. Legislation of that manner has been introduced in California, Connecticut, Illinois, New York, and Rhode Island. Other states have introduced legislation to require employers to keep employee complaint records for a certain period of time, create task forces or commissions to identify policy recommendations on sexual harassment in the workplace, and establish a standard cause of action against employers or employees for workplace harassment.

Although many more states have recently looked to address this topic, a handful of states enacted legislation on sexual harassment in the workplace in 2016 and 2017. In 2017, both California and Oregon passed legislation to address sexual harassment among farm laborers and janitorial services, respectively. Maine also set workplace training requirements on sexual harassment in 2017. In 2016, California passed two bills, one prohibiting confidentiality agreements as it relates to sexual assault and the other setting requirements for sexual harassment training.

Along with legislative trends regarding sexual harassment in the workplace, NCSL has also tracked legislation to reduce sexual harassment within the statehouse walls. Over 125 pieces of legislation have been introduced this year in 32 states. The response has varied from state to state. Some legislatures have conducted reviews of their internal sexual harassment policies and updated them in response to the renewed interest in the subject. Other states have made more sweeping changes. Notably, Illinois requires all state offices to have a written sexual harassment policy, to conduct mandatory sexual harassment training and require all lobbyists to attend training and to have a written sexual harassment policy in place at the time of registration.  Indiana passed legislation that mandates sexual harassment training for legislators and Virginia passed legislation mandating training for legislators and legislative employees and Maryland's new policy extends that training to all state employees and all registered lobbyists.  In addition to passing direct legislation, numerous chambers created committees to examine their internal policies and procedures. California, Connecticut, Louisiana, Maryland, Minnesota and Washington, just to name a few, created committees and commissions to review their practices and update them when necessary. Finally, two legislators have been expelled by their chamber due to sexual harassment allegations and 15 more have resigned.

Although many legislative sessions are coming to a close, I do not expect this topic to die down any time soon and anticipate many states introducing similar legislation in the 2019 legislative sessions.

Thank you and I am happy to answer further questions from the task force.