Concrete action to fight sexual harassment more effectively

Nov. 27, 2017 — For all the recent outrage at instance after instance of well-known public figures being found to have engaged in sexual harassment, and despite promises of reform to the rules applying to employees of some state governments, there has been surprisingly little discussion of any changes to the law that would affect the vast majority of victims of harassment who work in the civilian labor force.  Unknown to most people (other than harassment victims and lawyers who work in the field), there is a judge-invented doctrine that throws must victims out of court.  That doctrine says that harassment is not actionable unless it is “severe or pervasive.”

Victims of the crudest sex-based comments, of unwanted touching of every part of the body imaginable, of demands for sex from co-workers – all have had their cases thrown out of court because the conduct they suffered was not bad enough or did not happen often enough.

It is as though many judges do not understand that the “terms and conditions” of a job are different from what they should be even if the job includes dealing with harassment only sometimes instead of having to do so all the time.

Victims of the crudest sex-based comments, of unwanted touching of every part of the body imaginable, of demands for sex from co-workers – all have had their cases thrown out of court because the conduct they suffered was not bad enough or did not happen often enough.

Sometimes, judges especially unsympathetic to harassment claims make the legal road even more difficult by demanding a showing that the harassment be severe and pervasive.  This approach has nothing to do with what was intended by civil rights laws: that citizens have equal terms and conditions of work regardless of gender or race or other protected-class characteristics.  Yes, it is true that some harassment is more severe or pervasive than other harassment, but that is a question of the level or harm (damages) that an individual has suffered, not a question of whether the individual has had her rights violated in the first instance.

Part of the lack of focus on a legislative solution is obvious: if the current Republican Congress is going to do anything on the discrimination front, it is going to be making it easier for places of public accommodation to discriminate against people with disability, or making it harder to rely on proof that a practice affects one racial group more than another (both proposals are pending), not doing something to vindicate the rights of victims of harassment. 

But this is one area where state-level action to strengthen the law could be easily achieved in (blue) states representing a significant portion of the American population: federal law is explicitly set as the floor below which state law cannot fall, not a ceiling above which state law cannot rise.

There is a model in place for how to respond.  The problem of “severe or pervasive” was one of the inspirations of the 2005 Local Civil Rights Restoration Act, a set of amendments to the New York City Human Rights Law.  The revised language of the law — stating that its provisions had to be liberally construed to achieve the law’s “uniquely broad purposes” – combined with a legislative history that identified “severe or pervasive” as a problem, led to a judicial decision in 2009 that, uniquely in the country, has removed this barrier to justice (just last year, the decision was formally ratified by the New York City Council as part of a broader attempt to fight continuing judicial resistance to accepting the full sweep of the law).

The rejection of “severe or pervasive” for liability purposes has not been a panacea, even in New York City.  But it has meant that many more victims of harassment do get their day in court (which, in turn, means that many more claims are vindicated).  For example, a colleague of mine represented a gay man who worked in the mailroom of a large company.  He did not participate in the sexual banter that characterized the workplace, but was periodically on the receiving end of being called a “faggot,” and was generally excluded from conversations by his co-workers because he “liked to sleep with boys.”  This would have been a very difficult case to make out under the “severe or pervasive” standard – the employer’s counsel was all ready to try to minimize the conduct – but my colleague was able to achieve a substantial settlement of the claim because her adversary knew that the question before a jury would be simply, “Was the plaintiff treated less well because of protected class status?”

This New York City model could be adopted immediately by any state or municipality serious about fighting sexual harassment.

It is crucial that this occur without delay.   We know that moments of public focus fade very quickly.  Likely enough, much of the indignant anti-harassment rhetoric we have been hearing these last several weeks will soon be forgotten.  The time for concrete action is now.