BE HEARD Act Could Cripple Virginia Small Businesses

How about a law banning government harassment and hostile business climates?

by Hans Bader

Small businesses in Virginia could face a very different business climate next year due to Joe Biden’s support for laws like the BE HEARD Act. It could easily become law if Democrats take control of Congress and the presidency (as most pollsters expect).

Under the BE HEARD Act, even the tiniest employers with only one or two employees will face unlimited liability in lawsuits, for things like discrimination, or harassment committed by an employee. It would also redefine sexual harassment in an overly broad and confusing way that could lead to small businesses being liable for trivial acts or comments by an employee. These small businesses would also be liable for attorneys fees that could dwarf what they end up paying workers who sue them.

Right now, small businesses in Virginia aren’t covered by most federal discrimination laws like Title VII, unless they have at least 15 employees. This doesn’t mean they can get away with being racist. If they intentionally discriminate based on race, they can be sued under a federal race discrimination law that covers even the smallest employers, 42 U.S.C. 1981. And if they fire someone for a non-race-based reason — such as their sex, age, or religion — they can be sued under Virginia state law, if they have more than five employees (although punitive damages in such lawsuits are limited to $350,000.)

Businesses with fewer than 15 employees aren’t covered by federal laws against unintentional discrimination, or non-racial discrimination. But the “BE HEARD” Act would change that.

The Act treats small business just like big businesses, by subjecting them to unlimited damages in lawsuits. It does that by first subjecting even the tiniest employers to federal law (Title VII) — and then by abolishing the limits on compensatory and punitive damages contained in federal law (currently, damages are capped at $300,000, plus backpay).

The biggest problem small business would have as a result would not be those damages, but lawyers’ bills. Every time an employer loses a federal discrimination lawsuit, it has to pay the attorneys’ fees of the workers’ lawyer. But if the employer wins, it typically doesn’t recover any of its attorneys’ fees from the worker. This means the employer always ends up paying a bundle when it is sued for discrimination.

Big businesses can afford to pay hundreds of thousands or millions in attorneys fees. Small businesses can’t, and can go broke due to a single protracted discrimination lawsuit.

Those attorneys’ fees are often much bigger than the amount of money the worker gets from suing the employer — meaning that it is lawyers, not workers, who are the primary beneficiaries of federal antidiscrimination laws. That can encourage lawyers to sue businesses over minor violations. For example, a court awarded a worker over $40,000 in attorney fees against her employer, even though she suffered only $1 in damages in Brandau v. State of Kansas (1999).

And that doesn’t cover a business’s own legal costs. Remember, it has to pay its own lawyer, too. Years ago, it was estimated to cost $25,000 for an employer to get a very weak discrimination lawsuit against it dismissed at the earliest phase of litigation (“motion to dismiss”), $75,000 to get it dismissed at a later phrase (“summary judgment”) and $250,000 to defeat a discrimination lawsuit that makes it all the way to a trial.

The BE HEARD Act would also allow businesses to be sued long after memories have faded, making it hard to defend themselves. It extends the statute of limitations from 180 days to 4 years. It classifies commonplace hiring criteria as “discrimination,” by expanding the legal definition of unintentional discrimination to put the “burdens of production and persuasion” on employers in disparate-impact lawsuits. It also holds employers liable for certain unintended pay disparities by incorporating the Paycheck Fairness Act, which is discussed here.

It holds employers strictly liable for harassment committed by supervisors in violation of company policy. It defines people as supervisors, even when they really aren’t, because they lack the authority to hire, fire, or promote anyone. It allows not just employees but interns and independent contractors to sue employers.

The Act also redefines sexual harassment and discriminatory harassment in overly broad ways that will be confusing to jurors and may lead them to find an innocent employer guilty.

For example, it says conduct can be “workplace harassment” even if “the conduct occurred outside the workplace,” and that conduct can be sexual or discriminatory harassment even if did not do “tangible” or “psychological” harm, did not interfere with work, was “participated in” by the “complaining party,” or “the complaining party is not the individual being harassed.” That could lead to juries finding businesses liable for harassment based on trivial things that shouldn’t be considered harassing, such as speech about racial, sexual, or religious issues.

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18 responses to “BE HEARD Act Could Cripple Virginia Small Businesses

  1. Baconator with extra cheese

    Maybe the theory is we crush small business enough so that Bezos can buy everything. Once that happens Bernie can wiggle his fingers into the back of his Biden puppet and “tax” it all in one fell swoop. It’s the most direct path to Utopia.
    Has anyone watched WALL-E lately…. destined to be controlled by BuyNLarge (Amazon)…. we’re already consumed with the tablets from the movie.

  2. “…conduct can be “workplace harassment” even if “the conduct occurred outside the workplace,” and that conduct can be sexual or discriminatory harassment even if did not do “tangible” or “psychological” harm, did not interfere with work, was “participated in” by the “complaining party,” or “the complaining party is not the individual being harassed.””

    Because if the grievance-mongers don’t keep inventing new grievances to monger, they’ll have to find real jobs.

    • When the trial lawyers and the unions get their wish lists coordinated, you get a glimpse of real power. The 2020 GA with its new majorities passed quite a few bills in a short period, and Congress will do it on steroids.

  3. Biden’s proposal will be another tool in the tool box of the police state, the cancel culture, and suppressing free speech and property rights in America. This tool latest tool will allow the grievance activists to control and shut down small businesses that employ most of the working class. It will be the end of upwardly mobile middle class in America.

  4. Screw the workers!

    • “Screw the workers!” says Peter.

      Right. Particularly those workers who believe in God, working for a living, building a business for themselves, using it to employ others, and to support their own families (including getting married before having children), and so being able to send their own children to good schools, and so as to build and support their own communities and its citizens and their future, with their own hands, hearts, brains, money, and ambitions, and to insist on their protecting those rights for themselves and for others from destruction by a government and its allied cults ruled by ideologues, racists, and mobs.

      Yes, “Screw all these Workers! says Peter.

    • I don’t think anyone is saying screw the workers and I know I am not. However, if you think there are not a very significant number of individuals out there who would abuse the Be Heard Act just to see if they can “win the lottery” or to take revenge on someone who fires them for cause, then you are sadly mistaken. What do they have to lose by suing over some trivial event, or even a non-event? After all, they don’t have to pay anything if they lose, and the imprecise language in the act means their chances of losing outright are relatively small.

      A successful frivolous claim will have a much greater impact on a small business owner than a large corporation, so the real effect is likely to be “screw the little guy” – and I thought democrats/progressives fight FOR the little guy.

      Pendulums swing, and the Be Heard Act will push this particular pendulum too far in the “screw the employer” direction, in my opinion.

  5. Three of my Sunday School students were standing around talking about their Christian faith. A fourth girl joined the conversation. After a few minutes, she told them that their conversation was offensive because she was an atheist. The three Christians stopped their conversation, rather than being cited for harassment. Down with the Christians!

  6. Reed. You had me in tears! I should change the channel from “catwomen on the moon” to “it’s a wonderful life.”

  7. Many businesses reach a settlement agreement rather than litigate. In such cases, the employee wins and the employer loses.

  8. Do I believe Mr. Bader exaggerates things and intentionally misses other things for intended partisan effect?

    Do bears do it in the woods? You BETCHA!

  9. “Do I believe Mr. Bader exaggerates things and intentionally misses other things for intended partisan effect?

    Do bears do it in the woods? You BETCHA!”

    How unaware of reality can one be. Today, based on current events, its impossible to exaggerate on this leftist takeover of America.

    Look how Virginia (and country) has changed in five months, since last March. All the leftist’s hate, mobs, and unrest that ensued.

    Look how Virginia (and country) has changed since the Spring & Summer of 2017 in Charottesville, Va. All the leftists’ hate, mobs, and unrest that ensued.

    Look how Virginia has changed since 2012, when Teresa Sullivan was reinstated at UVA. All the leftists’ hate, mobs, and unrest that ensued.

    We are moving a warp speed into a crack-up, engineered by leftist ideologues and their crony elites.

  10. Biden is so close to picking his vice presidential running mate he can almost smell her.

    But Biden will be a great co-emperor with Northam. In 1977, just a few years before our governor (as an adult) went to party in blackface accompanied by a date in klan robes Biden said, “Unless we do something about this, my children are going to grow up in a jungle, the jungle being a racial jungle with tensions having built so high that it is going to explode at some point. We have got to make some move on this.”

    I graduated from a fully integrated high school on the Rt 1 corridor in Fairfax County in 1977. It was not a “racial jungle” – whatever that means.

    Biden would fit in quite well with Virginia’s plantation elite. Maybe the General Assembly can reserve a space next to the statue of Harry Byrd for a statue of Joe Biden.

    Suing employers for sexual harassment outside the workplace is absurd.

    • Eric the Half a Troll

      “Biden would fit in quite well with Virginia’s plantation elite.”

      Yes, and Trump fits right in with the blue collar worker crowd! I didn’t know today was Opposite Day!!

  11. I think if it were anyone else but Trump – Biden would lose in a heartbeat and may anyhow if that’s what folks like DJ want! 😉 The adage “be careful what you wish for” seems to be in full play!

  12. “Maybe the General Assembly can reserve a space next to the statue of Harry Byrd for a statue of Joe Biden.” Now there’s an image that will inhabit my dreams tonight.

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