The national spotlight on sexual harassment prompted by the #MeToo movement inspired some lawmakers to evaluate current laws relating to sexual harassment under Title VII. These same lawmakers are now proposing new protections for employees against workplace sexual harassment.
For example, the California Senate Judiciary recently formed a committee to evaluate the "severe and pervasive" standard required for a hostile work environment to determine if it's too high of a burden for employees to prove. The Committee's concern is that the "severe or pervasive" standard, when applied by the courts, has strayed from the text and intent of U.S. anti-discrimination laws.
The Committee has suggested two alternative legal standards for lawmakers to consider. The first is an alternative previously suggested by the U.S. Supreme Court, which states that if the harassment so altered the plaintiff that it became "more difficult to do the job, then it is deemed in violation of Title VII.
The second alternative comes from a New York appellate court's interpretation of New York City Human Rights Law. This interpretation determines whether the plaintiff has been "treated less well than other employees because of her [or his] gender." While the California lawmakers have not proposed any new legislation yet, the California Senate Judiciary Committee's investigation indicates that greater protections for California employees in hostile work environments may very well be underway in the near future.
Similarly, and in an attempt to eradicate the culture of silence around sexual harassment in the workplace, lawmakers in several states throughout the U.S. have proposed bills to prohibit the use of nondisclosure and mandatory arbitration provisions in employment contracts and settlement agreement. Lawmakers in California, New Jersey, New York, Pennsylvania, Vermont, and Washington have bills pending that prevent employers from forcing employees to keep silent about harassment as a condition of employment, a condition of settling a sexual harassment claim, or both. Additionally, New York and South Carolina have pending bills, which would prevent employers from forcing employees to arbitrate claims of sexual harassment in arbitration, which is often a confidential proceeding.
Since these bills are only in the early stages of development, their enactment is still uncertain. Nonetheless, with the wave of changes sparked by sexual harassment allegations in the U.S. today, it's likely that other cities and states will propose similar laws in the near future.
As employers, it's important to stay apprised of developments in the laws governing sexual harassment. Much like paid sick and family leave laws, which have been enacted at city and state-wide levels in some states across the country, sexual harassment laws may follow suit. Employers, especially multi-state employers, must take affirmative steps to understand the sexual harassment laws that apply to their companies and be prepared to proactively respond to the legislative changes that are developing throughout the country.
By: Mia A. Conza
Mia A. Conza is an attorney in the Firm’s Labor and Employment Practice Group. If you have any questions or concerns about this issue or any other matter, please contact Mia directly at 813-223-1099.
CA Legis. S. Comm. on Judiciary and the Select Comm. on Women, Work & Families, Co-Sponsored by the CA Legis. Women's Caucus. Justice for Victims: Re-Examining California's Legal Standard for Sexual Harassment - Background Paper, Jan. 11, 2018, available at http://sjud.senate.ca.gov/sites/sjud.senate.ca.gov/files/joint_hearing_background_paper_2.pdf.