by Liam Bissainthe
The Virginia state senate has blocked a bill that could potentially change the definition of “sexual harassment.” It would hold even small employers liable for comments defined as either “workplace harassment” or “sexual harassment.” Employers would held liable even for conduct that occurs “outside of the workplace,” and even for conduct committed by “nonemployees” such as customers.
But the very same provisions are found in another bill passed by the Virginia House of Delegates, that is still sitting in a committee of the state senate. So the legislation could still conceivably become law.
In a 20-to-18 vote, the state senate voted on February 5 to send the first harassment bill (SB 1360) back to the Judiciary Committee, where it died on February 6. But the exact same provisions appear to be found in the second harassment bill, HB 2155, which is still alive and sitting in the General Laws committee.
Any offensive comment based on a protected class is potentially the basis for a claim, regardless of whether the person at whom the comment was directed files the claim or was offended.
Employees may file a claim even if they are not the victim, if the conduct occurred outside of work (arguably outside the scope of employment), and there was no harm or adverse employment action. Because sexual harassment under these bills does not have an “unwelcome” conduct standard, a third party could arguably file a claim based on mutually consensual conduct between two other people that they deem offensive.
Bystander employees may sue on his/her own and thus bring in the target of harassment even if the target wishes to remain silent and work the situation out on his/her own.”
The bill also says “conduct may be workplace harassment regardless of whether …. the conduct occurred outside of the workplace.” But as a federal appeals court once observed, “most complaints of sexual harassment are based on actions which, although they may be permissible in some settings, are inappropriate in the workplace.” (See Sparks v. Pilot Freight Carriers, 830 F.2d 1554, 1561 n.13 (11th Cir. 1987)).
Employers may find it very difficult to enforce workplace norms outside the workplace. Telling them to regulate conduct “regardless” of where it occurs seems like overreaching. As a judge once pointed out in her ruling in dismissing a sexual harassment lawsuit, “even top level executives are entitled to make fools of themselves after work and on their own time.” (See Alvey v. Rayovac Corp. (1996)).
There may be occasional instances where conduct outside the workplace poisons the workplace, but that’s rare enough that it’s misleading to say that conduct is harassment “regardless” of where it occurs. Often, as the court noted in the Sparks case, whether conduct occurs in the workplace makes all the difference in the world.
The bill also requires employers to take “immediate and appropriate corrective action” in response to harassment among coworkers. Surely, employers should respond promptly in cases of harassment. But “immediate” action may not be possible. What if the harassment complaint is filed after work hours, or when the supervisor is absent from the worksite?
Federal courts only require “prompt and appropriate” action, for an employer to avoid a sexual harassment lawsuit. (See, e.g., Spicer v. Commonwealth of Virginia, 66 F.3d 705, 710 (4th Cir. 1995) (“prompt and adequate”); Intlekofer v. Turnage, 973 F.2d 773, 779 (9th Cir. 1992) (“prompt and appropriate”)).
“Immediate” action is not always feasible. For example, when employees are out of the office, or deaf employees need a sign-language interpreter, that may justify the employer taking a bit more time to figure out whether the accused employee is guilty, under the “prompt and appropriate” standard used by the courts — as one court made clear in overturning a jury verdict against an employer that took a while to figure out what action to take. (See Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001)).
The bill contains the following anti-employer language that may result in juries holding employers liable for conduct, even when its effect on the complainant is so trivial that the complainant could never win a harassment case under existing law:
Conduct may be workplace harassment regardless of whether (i) the complaining party is the individual being harassed; (ii) the complaining party acquiesced or otherwise submitted to or participated in the conduct; (iii) the conduct is also experienced by others outside of the protected class involved; (iv) the complaining party was able to continue carrying out the duties and responsibilities of such complaining party’s job despite the conduct; (v) the conduct caused a tangible or psychological injury; or (vi) the conduct occurred outside of the workplace.
(See proposed Va. Code § 2.2-3905(B)(9)(e)(3)).
This anti-employer language makes it seem like the conduct doesn’t need to be any big deal to the plaintiff, for the plaintiff to sue over it. Under existing law, people who sue over sexual or racial harassment, but view the conduct as “not a big deal,” lose their lawsuits. For example, a man admitted just that in his deposition, and lost his harassment lawsuit for precisely that reason. (See Newman v. Federal Express, 266 F.3d 401 (6th Cir. 2001)).
Under federal law, conduct amounts to illegal sexual harassment when it is severe or pervasive enough to create a hostile or abusive working environment for the plaintiff, from both an objective perspective (that of a reasonable person) and the subjective perspective of the plaintiff. (See Harris v. Forklift System, 510 U.S. 17 (1993); Clark County School District v. Breeden, 532 U.S. 268 (2001)). This dual requirement isn’t stated in the bill, although it doesn’t rule it out, either (it doesn’t contain words like “severe or pervasive,” although neither do some state EEO laws that are interpreted by judges as requiring “severe or pervasive” conduct for liability. Some campus sexual or racial harassment codes that banned racist or sexist speech but didn’t have language requiring that it be “severe or pervasive” were struck down as a a result, as being overly broad restrictions on free speech. See, e.g., DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)).
In comments to the Senate Finance Committee, Sen. Jennifer McClellan, D-Richmond, chief sponsor of the bill, indicated that the bill incorporates existing legal standards on what is “sexual harassment.” But that claim is questionable given its text.
For example, the bill says conduct can be harassment “regardless” of whether “the complaining party is [not] the individual being harassed.” But if the complaining party isn’t being harassed, that’s a strong sign that the complaining party’s own work environment wasn’t hostile, which means she can’t sue under existing law. That’s because “the impact of ‘second-hand harassment’ is obviously not as great as the impact of harassment directed at the plaintiff,” notes a federal appeals court. (See Gleason v. Mesirow Financial, 118 F.3d 1134, 1144 (7th Cir. 1997)).
The bill also says conduct can be harassment “regardless” of whether “the conduct is also experienced by others outside of the protected class involved.” But if the conduct is experienced by men and women alike, that is a sign that the conduct is not discriminatory, and is not a form of discriminatory harassment, such as sexual harassment, under existing law. Instead, the conduct may simply be a normal part of the job. For example, the California Supreme Court rejected a sexual harassment lawsuit over conduct that was not aimed at the plaintiff — sexual jokes by comedy writers that were part of the process of producing an adult-oriented sitcom — because the conduct wasn’t aimed at the plaintiff based on her sex. The conduct may have offended her, but it didn’t treat women worse than men, and sexual humor was simply a necessary part of producing an adult-oriented sitcom. (See Lyle v. Warner Brothers, 132 P.3d 211 (Cal. 2006)).
The bill also doesn’t include the word “unwelcome” in its definition of sexual harassment. The Supreme Court has always said that conduct has to be “unwelcome” to be sexual harassment. Not including the word “unwelcome” in the definition of sexual harassment might lead to people suing over offensive remarks they themselves instigated (and thus objectively welcomed) or, conceivably, people suing over “welcome” but offensive relationships among their peers. Under existing law, if you instigate an exchange you can’t sue over it, such as when you say something vulgar or profane, and your co-workers respond in kind. (See Scusa v. Nestle USA, 181 F.3d 958 (8th Cir. 1998)).
Liam Bissainthe is a real estate investor and former attorney. This column was published originally at Liberty Unyielding.