HF 110 (LSB 1375YH (2) 88)

HOUSE FILE 110

BY  WESSEL-KROESCHELL

A BILL FOR

An Act relating to sexual harassment in employment policies and protections, and including effective date provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  216.6B  Additional unfair or discriminatory practice —— sexual harassment in employment.
   1.  a.  As used in this section, “sexual harassment” means persistent, repetitive, or highly egregious conduct directed at a specific individual or group of individuals that a reasonable person would interpret as intentional harassment of a sexual nature, taking into consideration the full context in which the conduct occurs, which conduct threatens to impair the ability of a person to perform the duties of employment.
   b.  “Sexual harassment” may include but is not limited to the following:
   (1)  Unsolicited sexual advances by a person toward another person who has clearly communicated the other person’s desire not to be the subject of those advances.
   (2)  Sexual advances or propositions made by a person having superior authority toward another person within the workplace.
   (3)  Instances of offensive sexual remarks or speech or graphic sexual displays directed at a person in the workplace, who has clearly communicated the person’s objection to that conduct, and where the person is not free to avoid that conduct due to the requirements of the employment.
   2.  All employers, employment agencies, and labor organizations have an obligation to ensure a workplace that is free from sexual harassment. 
   3.  Every employer shall:
   a.  Adopt a written policy against sexual harassment which shall include all of the following:
   (1)  A statement that sexual harassment in the workplace is unlawful.
   (2)  A statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of sexual harassment.
   (3)  A description and examples of sexual harassment.
   (4)  A statement of the range of consequences for employees who commit sexual harassment.
   (5)  If the employer has more than three employees, a description of the process for filing internal complaints about sexual harassment and the names, addresses, and telephone numbers of the person or persons to whom complaints should be made.
   (6)  The complaint process of the appropriate local, state, and federal employment discrimination enforcement agencies, and directions as to how to contact such agencies.
   b.  Post in a prominent and accessible location in the workplace, a poster providing, at a minimum, the elements of the employer's sexual harassment policy required by paragraph “a”.
   c.  Provide to all employees a written copy of the employer's policy against sexual harassment.
   4.  a.  An employer shall provide a copy of the employer’s written policies to new employees when hired. 
   b.  If an employer makes changes to its policy against sexual harassment, the employer shall provide to all employees a written copy of the updated policy.
   5.  The commission shall prepare and provide to employers a model policy and a model poster, which may be used by employers for the purposes of this section.
   6.  An assertion that an employee did not receive the information required to be provided by this section shall not result in the automatic liability of any employer to any current or former employee or applicant in any action alleging sexual harassment. An employer’s compliance with the notice requirements of this section does not preclude the employer from liability for sexual harassment of any current or former employee or applicant. 
   7.  a.  Employers and labor organizations are encouraged to conduct an education and training program for all new employees and members that includes at a minimum all the information outlined in this section within one year after commencement of employment.
   b.  Employers and labor organizations are encouraged to conduct an annual education and training program for all employees and members that includes at a minimum all the information outlined in this section.
   c.  Employers are encouraged to conduct additional training for new supervisory and managerial employees and members within one year after commencement of employment or membership, which should include at a minimum the information outlined in this section, the specific responsibilities of supervisory and managerial employees, and the actions that these employees must take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints. 
   d.  Employers, labor organizations, and appropriate state agencies are encouraged to cooperate in making this training available. 
   8.  a.  An employer shall not require any employee or prospective employee, as a condition of employment, to sign an agreement or waiver that does any of the following:
   (1)  Prohibits, prevents, or otherwise restricts the employee or prospective employee from opposing, disclosing, reporting, or participating in an investigation of sexual harassment.
   (2)  Except as otherwise permitted by state or federal law, purports to waive a substantive or procedural right or remedy available to the employee with respect to a claim of sexual harassment.
   b.  An agreement to settle a sexual harassment claim shall expressly state all of the following: 
   (1)  That the agreement does not prohibit, prevent, or otherwise restrict the individual who made the claim from doing any of the following:
   (a)  Lodging a complaint of sexual harassment committed by any person with the commission, the federal equal employment opportunity commission, or any other local, state, or federal agency.
   (b)  Testifying, assisting, or participating in any manner with an investigation related to a claim of sexual harassment conducted by the commission, the federal equal employment opportunity commission, or any other local, state, or federal agency. 
   (c)  Complying with a valid request for discovery in relation to civil litigation or testifying in a hearing or trial related to a claim of sexual harassment that is conducted by a court, pursuant to an arbitration agreement, or before another appropriate tribunal. 
   (d)  Exercising any right the individual may have pursuant to state or federal labor relations laws to engage in concerted activities with other employees for the purposes of collective bargaining or mutual aid and protection.
   (e)  (i)  For the purposes of this subparagraph division, “pursuing” means taking steps to file a criminal complaint including but not limited to speaking with a peace officer as defined in section 801.4 or a county attorney regarding criminal harassment, filing a criminal complaint, or assisting a peace officer or county attorney in the prosecution of a criminal complaint.
   (ii)  Pursuing a criminal harassment complaint pursuant to section 708.7.
   (2)  That the agreement does not waive any rights or claims that may arise after the date the settlement agreement is executed. 
   c.  Any provision of an agreement to settle a sexual harassment claim that violates paragraph “b” shall be void and unenforceable against the individual who made the claim. 
   d.  Nothing in subparagraph (2) of paragraph “b” shall be construed to prevent an agreement to settle a sexual harassment claim from waiving or releasing the claimant’s right to seek or obtain any remedies relating to sexual harassment of the claimant by another party to the agreement that occurred before the date on which the agreement is executed.
   e.  (1)  (a)  (i)  For the purpose of assessing compliance with the provisions of this section, the commission may with 48 hours’ notice, at reasonable times and without unduly disrupting business operations, enter and inspect any place of employment, question any person who is authorized by the employer to receive or investigate complaints of sexual harassment, and examine an employer’s records, policies, procedures, and training materials related to the prevention of sexual harassment and the requirements of this section.
   (ii)  An employer may agree to waive or shorten the 48-hour notice period.
   (iii)  As used in subparagraph subdivision (i), the term “records” includes de-identified data regarding the number of complaints of sexual harassment received and the resolution of each complaint.
   (b)  The employer shall at reasonable times and without unduly disrupting business operations make any persons who are authorized by the employer to receive or investigate complaints of sexual harassment and any records, policies, procedures, and training materials related to the prevention of sexual harassment and the requirements of this section available to the commission or designee.
   (2)  Following an inspection and examination pursuant to subparagraph division (a) of this paragraph “e”, the commission shall notify the employer of the results of the inspection and examination, including any issues or deficiencies identified, provide resources regarding practices and procedures for the prevention of sexual harassment that the employer may wish to adopt or utilize, and identify any technical assistance that the commission may be able to provide to help the employer address any identified issues or deficiencies. If the commission determines that it is necessary to ensure the employer’s workplace is free from sexual harassment, the employer may be required, for a period of up to three years, to provide an annual education and training program that satisfies the provisions of subparagraph (4) of this paragraph “e” to all employees or to conduct an annual, anonymous working-climate survey, or both. 
   (3)  Pursuant to and consistent with section 216.15, subsection 5, the commission shall keep the records, materials, and information related to or obtained through an inspection carried out through an investigation or effort to resolve a discriminatory or unfair practice confidential.
   (4)  If required by the commission pursuant to subparagraph (2) of this paragraph “e”, an employer shall conduct all of the following: 
   (a)  An annual education and training program for all employees that includes at a minimum all the information outlined in this section.
   (b)  An annual education and training program for supervisory and managerial employees that includes at a minimum all the information outlined in subparagraph (2) of this paragraph “e”, the specific responsibilities of supervisory and managerial employees, and the actions that these employees must take to ensure immediate and appropriate corrective action taken in addressing sexual harassment complaints. 
   9.  Upon timely application to the court in which an action involving an issue raised under this section is pending, the attorney general may intervene as a party at any time or may be heard at any time. 
   10.  The commission shall adopt rules pursuant to chapter 17A to administer this section.
    Sec. 2.  Section 19B.12, subsection 4, Code 2019, is amended to read as follows:
   4.  The department of administrative services for all state agencies, and the state board of regents for its institutions, shall adopt rules and appropriate internal, confidential grievance procedures to implement this section, and shall adopt procedures for determining violations of this section and for ordering appropriate dispositions that may include, but are not limited to, discharge, suspension, or reduction in rank or grade as defined in section 8A.413, subsection 19.  An accurate representation of all complaints of sexual harassment shall be forwarded to the employee accused of harassment and the supervisor of the complainant accompanied by a statement indicating that retaliation is prohibited by section 216.11, subsection 2.
    Sec. 3.  Section 216.2, subsection 15, Code 2019, is amended to read as follows:
   15.  “Unfair practice” or “discriminatory practice” means those practices specified as unfair or discriminatory in sections 216.6, 216.6A, 216.6B, 216.7, 216.8, 216.8A, 216.9, 216.10, 216.11, and 216.11A.
    Sec. 4.  Section 216.15, subsection 1, Code 2019, is amended to read as follows:
   1.  Any person claiming to be aggrieved by a discriminatory or unfair practice may, in person or by an attorney, make, sign, and file with send to the commission a verified, written complaint which shall state the name and address of the person, employer, employment agency, or labor organization alleged to have committed the discriminatory or unfair practice of which complained, shall set forth the particulars thereof, and shall contain such other information as may be required by the commission. The commission, a commissioner, or the attorney general may in like manner make, sign, and file such complaint.  The complaint of the commission, commissioner, or attorney general shall include a statement setting forth the prohibition against retaliation pursuant to section 216.11, subsection 2.
    Sec. 5.  Section 216.15, subsection 3, paragraph a, Code 2019, is amended to read as follows:
   a.  After the filing submission of a verified complaint, a true copy an accurate representation thereof shall be served within twenty days on the person against whom the complaint is filed submitted, except as provided in subsection 4.  Additionally, with the complaint, a statement setting forth the prohibition against retaliation pursuant to section 216.11, subsection 2, shall be served. An authorized member of the commission staff shall make a prompt investigation and shall issue a recommendation to an administrative law judge employed either by the commission or by the division of administrative hearings created by section 10A.801, who shall then issue a determination of probable cause or no probable cause.
    Sec. 6.  ENHANCED REPORTING OF DISCRIMINATION AND SEXUAL HARASSMENT.
   1.  On or before December 15, 2019, the Iowa civil rights commission shall develop and implement enhanced mechanisms for employees to submit complaints of discrimination and sexual harassment in employment.
   2.  The methods shall include, at a minimum, an easy-to-use portal on the Iowa civil rights commission’s website and a telephone hotline. Each method shall provide a clear statement that information submitted may be referred to the federal equal employment opportunity commission or a local agency that has jurisdiction over the complaint.
    Sec. 7.  PUBLIC EDUCATION AND OUTREACH.
   1.  On or before December 15, 2019, the Iowa civil rights commission shall develop a public education and outreach program that is designed to make Iowa employees and employers aware of: 
   a.  Methods for reporting employment discrimination and sexual harassment. 
   b.  Where to find information regarding the following: 
   (1)  The laws related to employment discrimination and sexual harassment. 
   (2)  Best practices for preventing employment discrimination and sexual harassment.
   2.  The program may include printed informational and training materials and in-person seminars and workshops.
    Sec. 8.  REPORT BY THE IOWA CIVIL RIGHTS COMMISSION TO THE GENERAL ASSEMBLY AND THE GOVERNOR.   On or before January 15, 2020, the Iowa civil rights commission, in consultation with the attorney general, shall submit to the general assembly and the governor a report. The report shall include all of the following: 
   1.  Information regarding the implementation of the enhanced reporting mechanisms for instances of employment discrimination and sexual harassment, including all of the following: 
   a.  A detailed description of how any existing reporting mechanisms were enhanced and any new reporting mechanisms that were implemented. 
   b.  A summary of changes, if any, in the annual number of complaints of employment discrimination and sexual harassment received and the number of complaints resulting in an investigation, settlement, or actions in courts in Iowa, including state and federal courts, during calendar years 2019 and 2020 in comparison to calendar years 2017 and 2018.
   c.  The number of employees and other persons that reported employment discrimination or sexual harassment to their employer, supervisor, or the person for whom they were working prior to making a complaint in comparison to the number that did not, and the reasons that employees and other persons gave for not reporting the discrimination or sexual harassment to their employer, supervisor, or the person for whom they were working prior to making a complaint. 
   d.  Any suggestion for legislative action to enhance further the reporting mechanisms or to reduce the amount of employment discrimination and sexual harassment.
   2.  An examination of mechanisms to provide notice to the Iowa civil rights commission of agreements to settle sexual harassment claims that contain a nondisclosure provision and mechanisms to render provisions of agreements to settle sexual harassment claims that include nondisclosure agreements void and nonenforceable if, in relation to a separate claim, the alleged harasser is later found by a court or tribunal of competent jurisdiction to have engaged in sexual harassment or retaliation in relation to a claim of sexual harassment. The report shall also identify mechanisms, including legal issues, advantages, and disadvantages, to accomplish potential changes described in subsection 2, and review and examine laws and pending legislation in other states that are related to this subsection 2.
    Sec. 9.  MODEL POLICY AND POSTER BY THE IOWA CIVIL RIGHTS COMMISSION.  On or before September 15, 2019, the Iowa civil rights commission shall create the model policy and model poster required pursuant to section 216.6B, subsection 5, to reflect the provisions of this Act.
    Sec. 10.  IMPLEMENTATION OF ACT.  Section 25B.2, subsection 3, shall not apply to this Act.
    Sec. 11.  CONTINGENT EFFECTIVE DATE.  The following take effect upon the Iowa civil rights commission’s creation pursuant to section 216.6B, subsection 5, of the model policy and model poster:
   1.  The provisions of this Act enacting section 216.6B, subsections 3 and 4.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to sexual harassment in employment. 
   NEW CODE SECTION 216.6B. The bill creates new Code section 216.6B (additional unfair or discriminatory practice —— sexual harassment in employment) in the Iowa civil rights Act. The bill defines sexual harassment similarly to Code chapter 19B.
   The bill requires that every employer adopt a written policy against sexual harassment and prescribes what the policy must include. The bill requires that the employer post the policy in a prominent and accessible location in the workplace and provide an individual written copy of the policy to all employees. The bill requires that employers provide copies of the written policies to employees upon hire and provides written copies of updated policies to employees when changes are made. These provisions of the bill are not effective until the Iowa civil rights commission (commission) prepares and provides to employers a model policy and model poster regarding sexual harassment, which is a requirement of the bill.
   The bill provides that an assertion that an individual did not receive the information required to be provided by the bill shall not result in the automatic liability of any employer to any current or former employee or applicant in any action alleging sexual harassment. The bill further provides that an employer’s compliance with the notice requirements of the bill does not preclude the employer from liability for sexual harassment of any current or former employee or applicant. 
   The bill encourages employers and labor organizations to conduct annual education and training programs on the topic of sexual harassment.
   The bill provides that an employer shall not require any employee or prospective employee, as a condition of employment, to sign an agreement or waiver that does any of the following: (1) prohibits, prevents, or otherwise restricts the employee or prospective employee from opposing, disclosing, reporting, or participating in an investigation of sexual harassment, or (2) except as otherwise permitted by state or federal law, purports to waive a substantive or procedural right to remedy available to the employee with respect to a claim of sexual harassment. 
   The bill sets forth what an agreement to settle a sexual harassment claim shall state, including that it does not waive any rights or claims that may arise after the date the settlement agreement is executed and that it does not prohibit, prevent, or otherwise restrict the individual who made the claim from exercising enumerated rights. The bill provides that an agreement to settle a sexual harassment claim that violates such provisions is void and unenforceable against the person who made the claim. 
   The bill provides that the commission, in order to assess compliance with the provisions of this new Code section, shall be able to, with 48 hours’ notice, at reasonable times and without unduly disrupting business operations, enter and inspect any place of employment, question any person who is authorized by the employer to receive or investigate complaints of sexual harassment, and examine an employer’s records, policies, procedures, and training materials related to the prevention of sexual harassment and the requirements of the Code section. The bill requires the employer to at reasonable times and without unduly disrupting business operations make any persons who are authorized by the employer to receive or investigate complaints of sexual harassment and any records, policies, procedures, and training materials related to the prevention of sexual harassment and the requirements of the bill available to the commission or designee. The bill provides that following such an inspection and examination, the commission shall notify the employer of the results of the inspection and examination, including any issues or deficiencies identified, provide resources regarding practices and procedures for the prevention of sexual harassment that the employer may wish to adopt or utilize, and identify any technical assistance that the commission may be able to provide to help the employer address any identified issues or deficiencies. The bill provides that if the commission determines that it is necessary to ensure the employer’s workplace is free from sexual harassment, the employer may be required, for a period of up to three years, to provide an annual education and training program that satisfies certain requirements set forth in the bill to all employees or to conduct an annual, anonymous working-climate survey, or both. 
   The bill provides that upon timely application to the court in which an action involving an issue raised under Code section 216.6B is pending, the attorney general may intervene as a party at any time or may be heard at any time. 
   OTHER CODE SECTIONS. The bill amends Code section 19B.12 to include a requirement that all complaints of sexual harassment shall be forwarded to the employee accused of harassment and the supervisor of the complainant accompanied by a statement indicating that retaliation is prohibited by Code section 216.11(2).
   The bill amends the definition in Code section 216.2(15) of “unfair practice” or “discriminatory practice” to also include practices specified as unfair or discriminatory in new Code section 216.6B.
   The bill amends Code section 216.15 to eliminate the requirement that a complaint of discrimination with the Iowa civil rights commission be written. The bill also amends that Code section to state that if the commission, a commissioner, or the attorney general files a complaint, the complaint shall include a statement setting forth the prohibition against retaliation pursuant to Code section 216.11(2). The bill provides that rather than serving a true copy of a verified complaint, the commission shall serve an accurate representation of a verified complaint. Finally, the bill amends that Code section to provide that after the submission of a verified complaint, a statement setting forth the prohibition against retaliation pursuant to Code section 216.11(2) shall be served on the person against whom the complaint is filed, along with the complaint.
   SESSION LAW. The bill provides that on or before December 15, 2019, the Iowa civil rights commission shall develop and implement enhanced mechanisms for employees to submit complaints of discrimination and sexual harassment in employment. The bill provides that the methods shall include, at a minimum, an easy-to-use portal on the Iowa civil rights commission’s website and a telephone hotline. Each method shall provide a clear statement that information submitted may be referred to the federal equal employment opportunity commission or a local agency that has jurisdiction over the complaint.
   The bill provides that on or before December 15, 2019, the Iowa civil rights commission shall develop a public education and outreach program that is designed to make Iowa employees and employers aware of methods for reporting employment discrimination and sexual harassment and where to find information regarding the laws related to employment discrimination and sexual harassment as well as best practices for preventing employment discrimination and sexual harassment. The bill provides that the program may include printed informational and training materials and in-person seminars and workshops.
   The bill provides that on or before January 15, 2020, the Iowa civil rights commission, in consultation with the attorney general, shall submit to the general assembly and the governor a report. The report shall contain two parts. The first part of the report shall concern the implementation of the enhanced reporting mechanisms for instances of employment discrimination and sexual harassment. The bill provides specific instructions for the report. The second part of the report shall examine mechanisms to provide notice to the Iowa civil rights commission of agreements to settle sexual harassment claims that contain a nondisclosure provision and examine mechanisms to render provisions of agreements to settle sexual harassment claims that include nondisclosure agreements void and nonenforceable if, in relation to a separate claim, the alleged harasser is later found by a court or tribunal of competent jurisdiction to have engaged in sexual harassment or retaliation in relation to a claim of sexual harassment. The bill provides instructions for the second part of the report.
   The bill provides that on or before September 15, 2019, the Iowa civil rights commission shall create the model policy and model poster required pursuant to new Code section 216.6B(5) to reflect the provisions of the bill.
   The bill may include a state mandate as defined in Code section 25B.3. The bill makes inapplicable Code section 25B.2, subsection 3, which would relieve a political subdivision from complying with a state mandate if funding for the cost of the state mandate is not provided or specified. Therefore, political subdivisions are required to comply with any state mandate included in the bill.