New Jersey has proposed updates of the rules for reporting and investigation of sexual harassment complaints, but one state Senate leader who has spearheaded reforms in this area says the existing language of the changes could make it less likely for victims to come forward.
Meanwhile, the Civil Service Commission, which proposed the change in the state’s workplace-discrimination policy, may wind up not adopting the rule as written because it does not reflect exactly what Gov. Phil Murphy wants, a commission spokesman said.
Senate Majority Leader Loretta Weinberg (D-Bergen) was sharply critical of a provision in the rule proposal that would keep all complaints and investigations confidential indefinitely and subject those who violate that confidentiality to disciplinary action, up to termination. She called it “an affront to survivors everywhere.”
In an April 16 letter to the Civil Service Commission, Weinberg said the provision “would in fact make it harder for survivors to report harassment and assault.” She said such a strict confidentiality rule is contrary to the Legislature’s new harassment policy and would “fly in the face” of a law Gov. Phil Murphy signed last month preventing employers from forcing accusers to sign non-disclosure agreements.
Beyond the confidentiality provisions, the major revisions to the rule include changes that would allow a person to simultaneously file a complaint of sexual harassment with police and the state Equal Employment Opportunity office, add all forms of nonconsensual sexual conduct as a prohibited action and broaden the harassment policy to cover social-media posts, whether to business or personal sites, and other out-of-office actions that adversely affect the work environment.
Proposed change would ‘silence survivors’
The confidentiality change to which Weinberg objects states: “Failure to comply with this confidentiality directive will result in administrative and/or disciplinary action, up to and including termination of employment.” Currently, the policy says those who discuss complaints contrary to the confidentiality rule “may” face disciplinary action.
“This proposed change would in effect silence survivors who work for the State who report harassment or assault,” Weinberg wrote. “It would prevent them from discussing their situation in or out of the office. It would prevent them from telling a friend or talking to another survivor. And most incredibly in light of recent events, it would mean that a survivor who reports harassment or assault in a situation where the accused party remains employed, the survivor would be barred from warning his or her colleagues, or discussing the abuse at all.”
While not mentioning a specific event, Weinberg was likely referring to the incident in which Katie Brennan, now the chief of staff at the New Jersey Housing and Mortgage Finance Agency, accused Al Alvarez, former chief of staff of the state Schools Development Authority, of sexual assault while both were working on the Murphy gubernatorial campaign. Weinberg co-chaired the Legislative Select Oversight Committee that held a number of hearings into the matter, including the hiring of Alvarez, and is expected to issue a report on it.
Language in the proposed rule would expand the policy to apply to gubernatorial transition team employees, as well as regular state workers.
Opponent of non-disclosure agreements
Weinberg has been an active proponent of women’s rights in general and the rights of sexual-assault victims in particular. She sponsored the law Murphy signed last month that prohibits the use of nondisclosure agreements to prevent an accuser from discussing allegations of discrimination, harassment or sexual assault. NDAs are often used when an accuser agrees to settle an allegation in exchange for money or other terms.
“The entire purpose of this law is to prevent the use of a policy that keeps workplace disputes under wraps and masks the pervasiveness of sexual harassment in the workplace,” Weinberg wrote. “These proposed changes would completely undo this.”
Weinberg also was a leader in the movement to have the Legislature adopt a new, stricter anti-harassment policy last September. The policy prevents discrimination or harassment based on race, gender, nationality and other identifiers, makes it easier to report instances of violations and outlines how allegations are to be investigated.
In her letter to the Civil Service Commission, Weinberg wrote that in drafting the Legislature’s policy, lawmakers “worked very hard to strike a balance between protecting the privacy of all parties involved in the process while ensuring that the policy’s provisions would not have a chilling effect on those coming forward with complaints and on potential witnesses.”
Civil Service: Rule will reflect governor’s wishes
Joseph Forte, a spokesman for the Commission, said the rule is not going to be adopted as currently written because it does not reflect specific changes in the policy called for by Murphy in a February 5 statement. The rule was proposed by the state commission on January 16 and published in the February 19 edition of the New Jersey Register.
“The commission’s action to approve the proposed rule amendments predated the governor’s policy announcement. As a result, the final amendments to the workplace discrimination policy will reflect the language announced by Governor Murphy,” he said.
All of the provisions the governor called for on February 5 seem to appear in the rule proposal published in the NJ Register. However, Murphy did not call for mandatory disciplinary action for breaching the confidentiality of a complaint or investigation.
“The Commission will not adopt the proposed changes that differ from the Governor’s February 5, 2019 statement,” Forte said.
The commission could choose to propose a new rule or it could adopt the rule and make amendments to it that are deemed to be minor.
Murphy: ‘Survivor-centered’ changes are sought
In announcing the language changes he sought to the state policy, Murphy termed them “survivor-centered” and said, “we are creating an environment where survivors of sexual harassment, misconduct, or assault are not only encouraged to come forward, but when doing so, they are met with dignity, respect, and a straightforward process to attain justice.”
Patricia Teffenhart, executive director of the New Jersey Coalition Against Sexual Assault, agreed with Weinberg that the rule as written would hurt survivors and would appear to backtrack on other recent actions the state has taken. But the addition of the language subjecting those who breach confidentiality to discipline may have been an error, she said.
“If, in fact, the new rules were to include the language proposed during the public comment period, the impact on survivors would be serious — further pushing survivors into the shadows and allowing more bad-actors to skirt responsibility and plague our workplaces,” she said. “We’ve made significant strides in New Jersey over the last few months … It seems as if the language published as part of this public review flies in stark contrast to the efforts we’ve made. That being said, it does seem as if this may have been an unfortunate mistake and that the Administration is not wavering from the stronger policies they’ve recently adopted.”
The public-comment period on the proposed rule change remains open through Friday.