New York just sent a clear and strong message to companies in the #MeToo era: It is time to get on board (pun intended) with systemic policy reforms to address workplace sexual harassment.
Lawmakers in both New York City and Albany recently passed laws that hold employers accountable for eliminating workplace sexual harassment and eradicating the mechanisms that have discouraged survivors from coming forward. These regulations will soon set the new baseline minimum required to do business in the Empire State.
Included in the state budget were a host of sweeping reforms, such as establishing a statutory definition of sexual harassment, prohibiting mandatory arbitration agreements for sexual harassment complaints and banning nondisclosure agreements within sexual harassment settlements except under limited circumstances.
And the City Council joined the fray by passing a related package of legislation to strengthen protections against workplace sexual harassment, including by mandating training for any company in New York City with 15 or more employees and lengthening the statute of limitations for harassment claims.
Companies doing business in New York should conduct a comprehensive review of their employment policies to ensure compliance with the new legal landscape. Businesses can no longer treat harassment as a "one-off" issue and rely on quick settlements and sweeping nondisclosure agreements. As a recent New York Times piece explained, "harassment has flourished in part because structures intended to address it are broken: weak laws that fail to protect women, corporate policies that are narrowly drawn and secret settlements that silence women about abuses."
In reality, companies and their employees stand to benefit from going beyond these new bare minimums required by New York. Government regulation is not synonymous with business opportunity. Setting specific goals for gender parity with attached target dates can help usher in significant change. For example, to help achieve gender equality in the workplace, some companies have committed to 50/50 gender representation. This includes putting women in 50% of top roles at the company and having men in 50% of traditionally more female roles, such as executive assistant.
It is already illegal for public and private employers in New York City to ask about a job applicant's salary history during the hiring process, but companies should go beyond this regulation and commit to gender pay parity by a specific deadline. They should also consider more narrowly tailored nondisclosure agreements that keep the key terms (such as monetary compensation) of a settlement agreement confidential, without preventing an employee from telling her story. In fact, within our own industry, there is increasing pressure from law students across the country to get rid of arbitration provisions and nondisclosure agreements as a condition of their employment at top firms.
Other forward-looking initiatives include gender-bias audits of a company's promotion process by searching for gender-loaded words, such as "aggressive" or "abrasive" in employee reviews. As feminist commentator Jill Filipovic recently wrote: "Ambition, in women, remains suspect because it breaks this expectation of servility."
General counsel at larger corporations could also take a cue from Hollywood and customize a version of the "inclusion rider" made famous by Frances McDormand's Academy Award speech. For instance, a meeting not attended by a diverse, representative group of employees could be postponed until the right voices are at the table.
The same principle should apply when companies are selecting outside consultants, attorneys or advisers for their most pressing matters. Similarly, any employees representing the company on an industry panel could only agree to participate if the event includes a diverse representation of panelists.
Rather than skating by on compliance minimums, New York companies should embrace these new state and city laws as motivation to set cutting-edge precedents. Not only is it the right thing to do, but it is also a smart, growth-oriented decision that projects confidence in a corporation's future, prioritizes the broader company culture and ultimately will save the company money and increase profits.
It is a signal to employees and clients that the company is actively engaging in today's conversation about what makes a modern, equitable workplace. After all, #TimesUp.
Roberta Kaplan, an attorney and founder of the firm, chairs Vice Media’s Diversity and Inclusion Board and advises corporations on issues of inclusion and workplace anti-harassment procedures. Rachel Tuchman is an associate.
Read this at Crain's.