New Connecticut Law Expands Employer Training Obligations and Other Key Provisions of Anti-Discrimination Laws

June 27, 2019 Advisory

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, “An Act Combatting Sexual Assault and Sexual Harassment.” 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.

Sexual Harassment Prevention Training

Connecticut law currently requires employers with fifty or more employees to provide sexual harassment prevention training to all supervisors within six months of assuming a supervisory position.  Regulations promulgated by the Connecticut Commission on Human Rights and Opportunities (“CHRO”) encourage, but do not require, employers to provide training updates once every three years.

The new law expands these obligations to encompass Connecticut employers of only three or more and mandates that all employees – both supervisory and non-supervisory – receive two hours of sexual harassment prevention training.  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.

Employers with fewer than three employees (including family businesses where an individual is employed by a spouse, parent or child) must provide sexual harassment training to supervisory employees by October 1, 2020, or within six months of an employee assuming a supervisory role.

All employers will be required to provide periodic supplemental training not less than every ten years.  Failure to provide the training as required will be considered a “discriminatory practice” in violation of the Connecticut Fair Employment Practices Act (“CFEPA”), and employers will be subject to fines of up to $750.

Posting Requirements

Employers were previously required to post information about the illegality of sexual harassment and the remedies available to victims of sexual harassment.  Under this new legislation employers must, within three months after an employee’s start date, provide this information to each employee, rather than simply posting it.  The notice provision can be satisfied via email, and the statute goes so far as to specify that the email must contain “Sexual Harassment Policy” or similar words in the subject line.  If email is not available, an employer must post this information on the employer’s internet website, if the employer maintains such a site.  The penalty for failing to satisfy this new requirement is a fine of up to $750.

In addition, within 12 months of a complaint being filed with the CHRO, or where the CHRO’s executive director “reasonably believes” the employer is in violation of the new posting and training requirements, the CHRO can now assign a designated representative to enter an employer’s place of business to ensure compliance with the posting requirements.  Notably, the CHRO representative’s investigation will not be limited to compliance with the posting requirement; rather he or she may also examine records, policies, procedures, postings and sexual harassment training materials maintained by the employer to confirm compliance with all requirements of the statute.

Corrective Action of Sexual Harassment Claims

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 making modifications to the terms and conditions of employment of the employee who registered the complaint by, for example, changing the employee’s schedule or relocating the employee, the employee must consent to the change in writing.  However, if an employer does not obtain a written agreement, the CHRO may still find that the employer’s corrective actions were reasonable and not detrimental to the complainant if evidence presented to the CHRO supports that conclusion.

Other Changes to CFEPA

Time to File.  The new law also nearly doubles the amount of time individuals who believe they have been subjected to a discriminatory practice in violation of the CFEPA have to file a complaint with the CHRO, from within 180 days of the alleged adverse action to within 300 days after the date of the alleged act of discrimination.  The extended time in which to file with the CHRO applies to all complaints based on violations alleged to have occurred on or after October 1, 2019.

Damages at the CHRO.  In another win for employees, P.A. 19-16 expands the potential damages that can be assessed by the CHRO at the public hearing stage if it concludes that a discriminatory employment practice has occurred.  Currently, CHRO hearing officers are authorized by statute to award reinstatement and back pay as forms of relief.  Effective October 1, 2019, the CHRO may award the amount of damages suffered by the complainant, including the “actual costs incurred by the complainant” as well as “reasonable attorney’s fees and costs.”

Damages in Court. In 2016, the Connecticut Supreme Court ruled that the CFEPA does not authorize courts to award punitive damages in cases of employment discrimination.  In a rebuke of that ruling, the legislature has expressly permitted the award of punitive damages, as deemed appropriate, beginning October 1, 2019.

Conclusion

The changes made by the new law will impact every single employer in the state with regard to training and notice requirements, and employers must be prepared to comply with these expanded obligations.  Notably, Connecticut’s “Time’s Up” law follows on the heels of similar legislation in New York, mandating interactive sexual harassment prevention training for all New York employees on an annual basis.  Employers with staff in either state should promptly review their internal policies to ensure consistency with both laws and maintain comprehensive records of their compliance.

As to the changes regarding the damages available to employees or former employees alleging violations of the CFEPA, employers and their counsel will need to consider these enhanced damages when evaluating a claim or potential claim of discrimination or harassment.  Perhaps more importantly, the increased financial liability underscores the need to establish comprehensive anti-discrimination policies and to respond promptly to any – and all – complaints of discrimination or harassment.

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