By Mary L. Senkbeil
A bi-partisan effort to end secrecy surrounding sex harassment and assault in the workplace was successful in 2022. In March 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. In December 2022, he signed the Speak Out Act. Taken together, these laws protect employees from agreements requiring them to keep silent about sex harassment or sexual assault in the workplace when those agreements are signed before any dispute arises.
The Speak Out Act (42 USC 19401 et. seq.) renders any non-disparagement or nondisclosure agreement entered into prior to a sexual assault or sexual harassment dispute unenforceable. These agreements are usually signed at the time or hire or in connection with a raise, bonus, stock option or other benefit. Non-disparagement or nondisclosure agreements relating to sexual harassment or sexual assault are only enforceable after the dispute arises. That means any provision in an agreement to mediate or arbitrate after the dispute arises, or a settlement agreement for these claims is enforceable under this law.*
Similarly, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFA) prevents employers from forcing employees to keep quiet about sexual harassment or sexual assault in the workplace by placing the arbitration choice with the employee bringing the claim. Prior to enactment, pre-dispute arbitration agreements (usually signed at the beginning of employment or in exchange for other benefits during employment), could prevent an employee from bringing sexual harassment and sexual assault cases in court in many states. The EFA specifically carved out sexual assault and sexual harassment claims from the Federal Arbitration Act and made their inclusion in any arbitration agreement unenforceable at the election of the employee bringing the claim in all states. In other words, for sexual assault / harassment claims an employer cannot force arbitration, the employee can choose court or arbitration.
On January 31, 2023, Minnesota passed the CROWN Act into law, joining 18 other states and Washington D.C. The law was effective immediately. The CROWN Act (which is an acronym for “Creating a Respectful and Open Workplace for Natural Hair”) amends the Minnesota Human Rights Act (MHRA) by adding the following definition of race “’Race’ is inclusive of traits associated with race, including but not limited to hair texture and hair styles such as braids, locs and twists.” Minn. Stat. § 363A.03, Subd. 36a.
In essence, the CROWN Act prohibits employers, businesses, schools and all other entities covered by the MHRA from treating people differently because of a hair style or texture associated with their race. This would include refusing to hire someone because they wear their hair in braids, locs or twists, adopting or enforcing dress codes, grooming policies or “professionalism in the workplace” policies to prohibit natural hair and hair styles based on race.
Anyone covered by the MHRA who violates the law may be liable for the resulting loss of wages (front pay and back pay), mental anguish or suffering, reasonable attorneys’ fees and costs, punitive damages and a civil penalty payable to the State of Minnesota.
The take-away? Instead of focusing on hair, employers should focus on the applicant’s / employee’s skills in performing the duties of the position for which they are hired. Minnesota employers who have grooming / dress code / professionalism or other policies regarding hair should review and revise them in light of this law.