The original instrument was prepared by Carla S. Roberts. The following digest,
which does not constitute a part of the legislative instrument, was prepared by Tim
Prather.
DIGEST
SB 404 Engrossed 2018 Regular Session Hewitt
Proposed law provides for the "Louisiana Public Servants' Sexual Harassment Prevention and
Training Act."
Proposed law provides that the legislature finds and declares that all of the following harms related
to sexual harassment:
(1)Sexual harassment violates an individuals basic civil rights.
(2)Sexual harassment undermines the personal dignity of state employees and officials.
(3)Sexual harassment violates and undermines the integrity of the workplace, whether or not
the individual public servants is the direct subject of the sexual harassment.
(4)Sexual harassment can destroy the career opportunities and the very livelihood of a public
servant.
Proposed law provides that the public policy of Louisiana is that state and local governments are
committed to workplace decency and will not tolerate, condone, or permit any kind of sexual
harassment of any public servant or by any public servant nor will retaliation against any victim of
sexual harassment be permitted.
Proposed law provides that the state will do all of the following:
(1)Encourage victims to report incidents of sexual harassment as soon as possible.
(2) Immediately investigate all incidents of sexual harassment.
(3)Keep confidential all investigation in order to protect the identify of the victim.
(4)Protect the victim from retaliation.
(5)Take correction action against the offender in order to render justice to the victim and
prevent future incidents of sexual harassment.
Proposed law provides for the following definitions related to proposed law:
(1)"Agency" means the department, office, division, agency, commission, board, committee or other organizational unit of the state, local government, or political subdivision which
employs the public servant.
(2)"Alleged offender" means a coworker or supervisor who is the subject of a sexual harassment
written complaint filed by a public servant pursuant to proposed law.
(3)"Civil service" means the Dept. of State Civil Service provided for in the La. Constitution.
(4)"Coworker" means a fellow worker who is a public servant, whether a public employee or
an elected official.
(5)"Elected official" means an elected official as defined in present law.
(6)"Investigator" means the public servant who is designated by the agency to receive and
investigate the sexual harassment complaint.
(7)"Offender" means a coworker or supervisor who has been investigated pursuant to a sexual
harassment written complaint filed by another public servant and has been deemed by his
agency to have violated the provisions of proposed law.
(8)"Public employee" shall mean "public employee" as defined in present law.
(9) "Public Servant" shall mean "public servant" as defined in present law.
(10)"Retaliation" means adverse action taken against a public servant or other individual for
filing a sexual harassment written complaint or testifying or cooperating in an investigation
or proceeding involving a sexual harassment written complaint.
(11)"Sexual harassment" means an instance of unwanted sexual conduct which occurs after a
public servant has communicated to the coworker that such conduct is unwelcome when any
of the following occur:
(a)Submission to such conduct is made, either explicitly or implicitly, a term or
condition of employment.
(b)Submission to or rejection of such conduct by an individual is used as the basis for
employment decisions affecting the public servant.
(c)The conduct has the purpose or effect or unreasonably interfering with an individuals
work performance or creating an intimidating, offensive or hostile working
environment.
(12)"Sexual harassment prevention coordinator" means the human resources director or other
person who is designated by the agency to coordinate and distribute educational and training
materials and who is charged with receiving written complaints pursuant to proposed law. (13)"Supervisor" means a coworker who is a representative of the agency and who is authorized
by the agency to do any of the following:
(a)Promote or demote the public servant who filed the written complaint pursuant to
proposed law.
(b)Perform an annual or periodic written performance review of the public servant who
filed the written complaint pursuant to proposed law.
(14)"Unwanted sexual conduct" means an unwelcome advance, request for sexual favor, or other
verbal or physical conduct of a sexual nature.
Proposed law provides that it shall be unlawful for any coworker to commit sexual harassment, as
is defined in proposed law, against any public servant.
Proposed law provides that a public servant, who believes the public servant is a victim of sexual
harassment as defined in proposed law, may file a written complaint with the supervisor or the
coordinator of sexual harassment prevention at the agency in which the public servant is employed
or the sexual harassment prevention coordinator with the commissioner of administration.
Proposed law provides that the investigator who received the complaint pursuant to proposed law
will conduct an investigation of the public servant's written complaint.
Proposed law provides that, when the public servant believes he is a victim of sexual harassment,
as defined in proposed law, and the alleged offender is the head of the public servant's state agency
or the agency's investigator, the public servant may file the written complaint with the sexual
harassment prevention coordinator at the commissioner of administration's office. Proposed law
provides that the investigator for commissioner of administration's office, in conjunction with the
office of risk management, shall conduct an investigation of the public servant's written complaint.
Proposed law provides that the investigation into the public servant's written complaint of sexual
harassment will include taking statements from the coworker or supervisor and any witnesses.
Proposed law provides that if, at any time during the investigation, the investigator becomes aware
that, in addition to the allegations of sexual harassment, there exists credible evidence that the public
servant has been a victim of a sexually related crime in La. Criminal Code or other source of criminal
law, the investigator shall assist the public servant in reporting the crime to state or local law
enforcement authorities.
Proposed law provides that the investigator, the agency head, and the sexual harassment prevention
coordinator shall keep all information regarding the investigation confidential, except when such
confidentiality would interfere with the resolution of the investigation.
Proposed law provides that if requested by the public servant, the agency shall make every effort to
relocate the alleged victim or the offender or both pending the investigation. Proposed law provides that, after the investigation is conducted, and there is a finding by the agency
that sexual harassment has taken place, the agency shall impose appropriate corrective action as
determined by the appointing authority. Proposed law provides that in addition to the appropriate
corrective action as provided in proposed law, offender shall take the remedial training as provided
in proposed law to reform his conduct. Proposed law provides that the agency shall document the
sexual harassment misconduct in the offender's employment file.
Proposed law provides that the division of administration shall promulgate the written complaint
form to be used by the public servants to report complaints of sexual harassment.
Proposed law provides that each state agency shall insert a question on all employment applications
for unclassified employees which will ask the applicant if he has ever been disciplined, fired,
terminated, or resigned to avoid dismissal from employment. For an applicant for an unclassified
position who has a history of being an alleged offender in sexual harassment complaints in his
previous employment, the state agency shall develop policies and procedures which will assist state
agencies in doing all of the following:
(1)Determining if the historical evidence indicates that applicant is reasonably likely in the
future to put unclassified employees at risk for sexual harassment.
(2)Determining if the applicant should be hired in a supervisory capacity.
(3)Determining if the applicant should be barred from employment at the state agency.
Proposed law provides that every public servant shall complete a minimum of one hour of education
and training on recognizing and preventing sexual harassment each year of the term of his public
employment or term of office. Proposed law provides that all newly appointed public officials or
newly hired employees shall complete the required one hour of educational training within the first
30 days of hiring. All newly elected officials shall complete the required one hour training on sexual
harassment within the first 90 days after taking office.
Proposed law provides that each public servant who is appointed to receive and investigate
complaints pursuant to proposed law shall be required to receive an additional one hour of education
and training on sexual harassment during each year of his public employment or term of office, as
the case may be.
Proposed law provides that the civil service will compile and produce training materials, a video or
digital teaching, or other educational information designed to prevent sexual harassment to be used
for training public servants.
Proposed law provides that the education and training requirements provided for in proposed law
may be completed through any one of the following methods:
(1)In person, through the agency, with training or educational materials provided for by civil
service. (2)By the internet, compact disk, or other training or educational materials provided for by civil
service.
(3)In person by the Department of State Civil Service.
Proposed law provides that each agency shall require as remedial training that the offender meet with
the sexual harassment prevention coordinator for one hour and review, in detail, the agency
handbook provided for in proposed law.
Proposed law provides that each agency shall designate at least one person to be the sexual
harassment prevention coordinator, who will provide all public servants of that agency with
information and instruction related to recognizing and preventing sexual harassment in the work
place, utilizing education and training materials made available by civil service. Proposed law
provides that the sexual harassment prevention coordinator will complete a minimum of two hours
of education and training regarding sexual harassment prevention in the workplace annually.
Proposed law provides that the name and contact information of the sexual harassment prevention
coordinator must be posted for easy access by public servants of the agency. Proposed law provides
that each agency will forward the name of the sexual harassment prevention coordinator to division
of administration no later than July 1st of each year and any change of the coordinator within 30 days
of the change in the name or contact information of the coordinator.
Proposed law provides that each agency's sexual harassment prevention coordinator shall keep
records of each public servant's compliance with the sexual harassment prevention education and
training requirements of proposed law. Proposed law provides that, if the agency's head or the sexual
harassment prevention coordinator discovers that a public servant has failed to complete the annual
training required by proposed law after the public servant has been notified of the failure, the agency
shall report the failure to complete training to the legislative auditor.
Proposed law provides that the commissioner of the division of administration shall promulgate a
sexual harassment prevention handbook which is consistent with the public policy enacted by
proposed law. Proposed law also provides that the sexual harassment prevention handbook will
include all of the following:
(1)The clear and concise public policy that the state is committed to workplace decency and will
not tolerate, condone, or permit any kind of sexual harassment of any public servant or
applicant for state employment.
(2)Provide the legal definition of sexual harassment as provided in proposed law.
(3)The prohibition against retaliation.
(4)To whom the policy is applicable.
(5)Sample explanations of behavior, as cited by the U.S. Equal Opportunity Commission or
other authoritative legal sources, which are examples of unwanted sexual conduct. (6)Define violations for prohibited conduct in a sexual harassment investigation including
failing to cooperate with a sexual harassment investigation, interfering with the investigative
process, and filing a false report of sexual harassment.
(7)Sexual harassment prevention training requirements, as provided in proposed law.
(8)A complaint procedure including the place in which to access the form to file a written
complaint if the public servant is a victim of sexual harassment in violation of proposed law.
(9)To whom a written complaint may be filed.
(10)What details may be necessary to facilitate an investigation.
(11)Appropriate response of the supervisor or agency head.
(12)Description of the process to keep information obtained pursuant to the investigation
confidential.
(13)Description of the investigation process, including the initial investigative process, the
interview process, and notice of final recommendations.
(14)Complaint resolution, including potential corrective actions and additional measures that may
be taken upon completion of the investigative process.
(15)Follow-up procedures implemented to ensure non-recurrence and compliance with the
provisions of this proposed law.
(16)Explanation of what constitutes good faith and bad faith complaints.
(17)The process, and corrective action, for false or bad faith complaints.
(18)Apprise public servants of applicable federal and state law and the right to file suit.
Proposed law provides that the division of administration will transmit a copy of the sexual
harassment prevention handbook to the head of each agency, by either electronic means or hard copy.
Proposed law provides that, upon receiving the transmitted copy of the sexual harassment prevention
handbook, the agency shall add the following information to the handbook indicating the name and
contact information of the sexual harassment prevention coordinator, for the agency, who will
coordinate and facilitate the complaint process. Proposed law provides that the agency shall
distribute the agency's sexual harassment prevention handbook to each public servant, either by
electronic means or hard copy.
Proposed law provides that the commissioner of administration shall promulgate, in accordance with
the provisions of the Administrative Procedure Act, such rules as may be necessary in order to
implement proposed law. Proposed law provides that each agency head shall compile an annual report, by February first of
each year, containing information from the previous calendar year regarding his agency's compliance
with the requirements of proposed law including the number and percentage of public servants in
his agency who have completed the training requirements, the number of sexual harassment
complaints received by his agency, the number of sexual harassment complaints wherein a pay
discrepancy is found and the amount of time it took to resolve each complaint. These reports shall
be public record and available to the public in the manner provided by the Public Records Law.
Proposed law provides that the agency heads in state government shall submit the reports required
by proposed law by February 15th of each year as follows:
(1)Agency heads in the 20 principal departments of the executive branch of state government,
the office of the governor, and the office of lieutenant governor shall submit the report to the
division of administration.
(2) Agency heads in the legislative branch of state government shall submit the report to the
Legislative Budgetary Control Council.
(3)Agency heads in the judicial branch of state government, including the supreme court, courts
of appeal, district courts, and other courts authorized by Article V of the Constitution of
Louisiana, shall submit the report to the chief justice of the supreme court.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(R.S. 42:1281-1294)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Senate and Governmental
Affairs to the original bill
1. Changes references from "state employees" and "public officials" to "public
servants".
2. Redefines the public policy of the state relative to sexual harassment.
3. Provides definitions for elected official, investigator, public employee and public
servant.
4. Adds reporting to the sexual harassment prevention coordinator with the
commissioner of administration.
5. Adds that the an agency may relocate the victim or the offender.
6. Provides for prior employment history for unclassified employees (any prior history of sexual harassment allegations).
7. Adds additional training for a public servant who is the agency supervisor or the
coordinator of sexual harassment prevention.
8. Adds annual mandatory reports relative to certain criteria from all agencies.