Bipartisan Senate Bills on Workplace Harassment Introduced

June 08, 2018

Senators Lisa Murkowski (R-AK) and Kamala Harris (D-CA) introduced the latest effort to address sexual harassment in private sector workplaces—the EMPOWER Act Parts I and II (S.2994 and S.2988, respectively)—which would generally ban nondisclosure agreements for harassment claims and require publicly traded companies to report the number of settlements and settlement amounts in their annual SEC filing.

Under the bills: 

  • NDAs and nondisparagement agreements would still be allowed—but only if they benefit both the employee and employer.  They cannot be “unilaterally” required as part of the settlement agreement or as part of a previous agreement signed as a condition of employment.

  • A confidential federal tip-line would be established to receive reports about harassment, supplementing the EEOC’s current formal complaint process and allowing the agency to target employers.  Reported claims would be shared with state enforcement agencies.
  • Workplace training programs would be required and companies would be prohibited from taking a tax deduction for expenses and attorneys’ fees in connection with workplace harassment litigation.
  • Settlement amounts and employer attorney fees would no longer be deductible from taxes for any harassment claim.

Outlook:  The bill has the support of more than a dozen civil, human, and women's rights groups, but it is one among several measures that have been introduced and it is unclear which, if any, will receive a strong push.  Meanwhile, several states are moving to address the issue (see separate story below).

In the House, Rep. Cheri Bustos (D-IL) has sent a letter to several large employers asking them to change “the private sector’s use of force arbitration” and to share the companies’ “policies on sexual harassment and discrimination as well as dispute resolution and arbitration more broadly.”  The letter appears to be an effort to increase employer support for the Ending Forced Arbitration of Sexual Harassment Act (H.R. 4734).