Analysis Law and Policy

New Vermont Law Strongest Legislative Response to #MeToo Yet

Bryce Covert

Signed by Republican Gov. Phil Scott last week and set to take effect in July, the law contains a number of provisions aimed at filling in the many legal holes that victims of sexual harassment can fall through.

The viral #MeToo movement sounded an alarm bell that didn’t just ring through the pages of newspapers and segments on cable TV, but through state legislatures, where lawmakers have wondered what they could do to stem the tide of sexual harassment at work. Except for a small handful, most states have considered some legislative remedy in recent months.

But any that want to do something truly meaningful about sexual harassment could do well to emulate what lawmakers just accomplished in Vermont. “It’s really one of the best in the wave of state bills that have been enacted,” said Lenora Lapidus, director of the Women’s Rights Project at the American Civil Liberties Union. “It addresses a lot of the pre-existing problems.”

Signed by Republican Gov. Phil Scott last week and set to take effect in July, the law contains a number of provisions aimed at filling in the many legal holes that victims of sexual harassment can fall through.

“I was very moved by the #MeToo movement and was watching with a combination of disgust but also relief that these women were coming forward with these stories,” Vermont state Rep. Sarah Copeland-Hanzas (D-Bradford), who crafted the legislation, explained of how it came about. “But I was really dissatisfied with the fact that it seemed like the only real change that was coming out of the #MeToo movement was ending the careers of publicly prominent people.” Instead, she wanted to do something that could create larger change. “I really felt like we needed to do something to bring the #MeToo movement back to Main Street [and help] the average factory line worker or wait server,” she said. The result is the state’s powerful new set of rules.

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Before starting a job, many employees are increasingly required to sign nondisclosure agreements. “It really has just grown over the past decades, where almost as a matter of course new employees sign away so many of their rights as a condition of taking a job,” Lapidus said. While some are meant to protect intellectual property or company secrets, others have become so broadly written as to make employees think they can’t talk to anyone about sexual harassment if they experience or witness it.

Some people are required to sign these agreements as part of settlements over sexual harassment claims. That happened to at least one Vermont woman, Lisa Senecal, who signed a nondisclosure agreement with Inntopia after a top official harassed her during a work meeting. She recently broke the agreement to speak publicly about what happened and shared her experience with Copeland-Hanzas as the bill was being crafted.

These clauses may not even be legally enforceable, but someone may still think they can’t talk about harassment or may be intimidated by their employer if they signed one. In that situation, “that would be on the individual to either challenge that in court or to not abide by it and risk the employer coming after the employee,” Lapidus said.

So the Vermont law makes it clear to everyone—employers and employees alike—that companies are not allowed to require workers to sign away their rights to talk about or take action on sexual harassment. “What this law does is make clear that under no circumstances will these provisions be valid, that they will be viewed as void and unenforceable,” Lapidus said.

Another big change is that the bill now protects all workers from sexual harassment, including those at small employers and who may not be typical employees, such as interns, independent contractors, or volunteers. Anyone at a workplace with fewer than 15 employees or who isn’t a conventional employee can’t bring a sexual harassment complaint under Title VII of the federal Civil Rights Act, which bans sexual discrimination. That’s become a more urgent problem as employers increasingly classify workers as independent contractors.

“Why should it matter how many employees there are if a person is doing work for another person?” Lapidus asked. “That sets up the power dynamic and relationship in which sexual harassment may occur.” With the new bill, “anyone who’s doing work for anyone else and suffers from sexual harassment will now be covered and protected,” explained Lapidus. “It is the behavior we want to get at, regardless of these distinctions of is it an independent contractor, employee; is it a larger employer or smaller employer?”

The law also enshrines residents’ rights to bring a complaint of sexual harassment to any investigatory entity, including the attorney general, human rights commission, or Equal Employment Opportunity Commission (EEOC) office, even if they’ve reached a settlement with an employer and/or signed a non-disclosure agreement, or to testify or participate in an investigation. They can also talk to their co-workers about harassment. “It would be unlawful to bar an employee from doing that even without this legislation,” Lapidus pointed out, “but that’s another area where people don’t realize that.” The law goes even further than that: It requires any settlement agreements to explicitly state that an employee retains these rights.

Vermont residents will now be assured that even if they settle with their employers over complaints of harassment, they can still return to work—employers can’t include provisions in those agreements banning someone from working for the company. This practice, unfortunately, crops up “quite, quite frequently,” Lapidus said. “Depending on where a person lives and what employment opportunities there are, particularly if they might be subsidiaries of a larger corporation, that could really bar a lot of employment opportunities.”

Victims of harassment aren’t the only ones who are empowered by the law. It also imbues the attorney general and human rights commission with the power to inspect, monitor, and evaluate workplaces to ensure that they follow sexual harassment laws.

“Laws are passed all the time and employers do not always abide by them,” Lapidus said. “This first of all gives a warning to employers [that] we may be coming in, so you should do what you’re required to do, and also it ensures ongoing implementation so that isn’t a one-shot deal.” It’s a relatively rare power; the EEOC, for example, can’t randomly inspect or investigate a workplace without a specific complaint.

Copeland-Hanzas sees the legislative victory as a first step, purposefully crafted to get people of all parties on board. And indeed, she was able to gain not just the support of the Vermont Progressive Party leader, but the Republican minority leader. “He saw the sense in what we were doing and saw it as a leveling of the landscape that has been for too long tipped in favor of hiding and protecting the harasser instead of ensuring a workplace free of sexual harassment,” she said. It also helped, of course, that it was happening with #MeToo in the background. It was a package “that somebody would feel ashamed to vote against in this day and age,” she said.

Her plan is to come back next year and tackle more difficult issues, such as whether and when employers can use nondisclosure agreements at all.

Lapidus agreed that there’s more to be done. Many of the problems that the law addresses are true of other kinds of discrimination, not just sexual harassment, such as the fact that anti-discrimination law only applies to workplaces of a certain size or to traditional employees. “The #MeToo movement has given an impetus certainly for this law and others like it,” Lapidus noted. “My hope is that some of these provisions will then be extended to other forms of employment discrimination.”

But even so, Vermont’s legislation can serve as a guide for what other states should consider in the wake of the #MeToo movement. “It really addresses some of the major problems right now in sexual harassment law,” Lapidus said. “Other states and perhaps even the federal government can look to this law.”

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