In recent years, a number of high-profile workplace sexual harassment cases and the #MeToo movement that followed have sparked an important conversation in our country about workplace harassment and equality. This conversation and the stories shared by many of the victims who have bravely come forward often have a common thread—too often allegations of workplace harassment are swept under the rug in order to protect the reputation of the individual harasser or the company.
Current laws place an undue burden on victims of harassment to prove misconduct. Harassment victims in most states face a very short window within which to file a complaint, in some cases no more than 180 days, from when the harassment occurred. Despite training programs for employees and supervisors, workplace harassment persists. Harassment continues to infect the workplace not because employers, supervisors, and victims are unable to recognize signs of harassment, or don’t know how to report it, but because the legal standard for suing someone for sexual harassment is impossibly high.
Under federal law, there’s a requirement that the harassment be either severe or pervasive. Some courts have found that conduct the public would recognize as harassing, such as repeated cat calls or verbal harassment, is not enough to rise to the level of harassment. Under cases decided by the U.S. Supreme Court, sexual harassment plaintiffs cannot claim a hostile work environment unless they complain to their employer and give them the opportunity to remedy the situation. The net effect of these legal requirements means that very few harassment victims will see their lawsuit reach a jury.
Recently several states, including California and New York, have made significant changes to their state laws to better protect victims of sexual harassment. In California, new laws which go into effect this year include a requirement that non-supervisory employees undergo sexual harassment prevention training and expand personal liability for sexual harassment to include investors, elected officials, lobbyists, directors and producers. The California Sexual Harassment Omnibus Bill the California Legislature made several important points: (1) Actionable harassment need only make it more difficult to do the job; (2) A single incident of harassment is sufficient to support a claim of hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment; (3) The existence of a hostile work environment is based on the totality of circumstances and a single discriminatory remark may be relevant evidence of discrimination; (4) The legal standard for harassment should not vary by type of workplace; (5) Harassment cases are rarely appropriate for summary judgment, meaning they should not be dismissed before trial. Finally, California also placed restrictions on confidential sexual harassment settlement agreements so that these agreements cannot include language that prevents disclosure of factual information related to a claim of sexual assault, sexual harassment, sex discrimination, or retaliation.
This past August, New York’s Governor signed into law amendments to the state’s Human Rights Law to strengthen protections for women and LGBTQ individuals and eliminate many of the barriers victims face in bringing forward complaints of sexual harassment. One of the most impactful changes removes the “severe or pervasive” standard, lowering the burden a victim has to prove to bring a claim in civil court. Under the new law, whether or not an employee complains about the discrimination to the employer no longer determines the employer’s liability. The amendments expand New York’s law to apply to all employers in the state, regardless of size, and also protects domestic workers and anyone providing services in the workplace, including independent contractors, vendors, and consultants. The law also includes potential awards of punitive damages for victims of employment discrimination, and requires New York courts to award attorney fees to any successful plaintiff in employment discrimination cases. This change will help bridge the gap in access to justice, especially for low wage workers who often cannot afford to hire an attorney.
While the steps taken to protect workers from sexual harassment in California and New York are encouraging, more needs to be done across the country to change employment laws and protect workers nationwide. To increase protections for the victims of harassment, instead of protecting harassers, Congress should follow the lead of states like California and New York, and strengthen the current laws.
For more information about the sexual harassment in the workplaces and recent changes in the law, see: