New York recently became the third state, following California and Delaware, to make it easier to bring workplace sexual harassment claims in court, highlighting the importance for employers in these states to update their anti-discrimination policies in kind.
Many businesses already have updated their policies to ban behavior considered improper but that might not have met the previous standard for being “severe or pervasive,” removing any confusion where state laws differ on the standard for harassment, lawyers told Bloomberg Law.
The #MeToo movement captured the attention of lawmakers, even calling out those within their own ranks, and legislation is beginning to catch up as a result.
Meanwhile, for companies that haven’t revisited their anti-harassment policies, a new state law provides the ideal time to make them as clear and inclusive as possible.
Is Severe or Pervasive Too Severe?
Before the change in New York, along with the other states, workplace harassment had to be “severe or pervasive” for it to be deemed hostile by a court. This made it more challenging for employees to bring claims against alleged harassers, even if the harassing behavior was repeated and perceived to be harmful.
While these new state laws make it easier to bring harassment claims, federal law remains subject to the severe or pervasive standard under Title VII of the Civil Rights Act of 1964. That means litigation might see a shift to state courts, where workers have more protections, said Rutgers Law School professor Stacy Hawkins.
“Many of these cases would in fact be dismissed before even getting to a jury because courts find that the conduct was either not sufficiently severe or pervasive enough to meet this legal threshold,” she said in an email. “This will no doubt shift much of the litigation in this area from federal to state court under this new law where claimants will now have a greater chance of succeeding under this lower standard.”
Employers Get Ahead of Laws
Some employers are taking it upon themselves to make harassment easier to prove. “Many of my clients who operate across the country generally like to pick the employment law which seems the most employee-friendly and apply those uniformly,” Haynes and Boone partner
Because the burden to prove sexual harassment as a hostile behavior is much lower with New York’s new law, it’s important for anti-harassment policies to be all-encompassing and inclusive, Proskauer Rose partner
“It makes it all the more important for employers to make sure that their policies are shored up, and their training initiatives are up to date on these latest developments,” he said. “The stakes are higher now.”
The new law clears up any confusion between what might be just “inappropriate,” as opposed to legally “actionable” behavior, making the job of lawyers much easier, Habinsky said.
“That’s a much brighter line for employers to understand what is inappropriate under the law,” he said.
Gigante advises employers in their policies to think beyond gender-based sexual harassment or discrimination, to be inclusive and aware of all protected characteristics of individuals.
“I would just suggest reading and making sure that the policy is as inclusive as possible,” he said of reviewing old policies to determine appropriate updates.
States Take Action
New York is the most recent state to abolish the “severe or pervasive” standard, but it likely won’t be the last. California and Delaware have either directly or effectively eliminated the standard, according to the National Conference of State Legislatures.
Delaware’s state law goes beyond Title VII federal protections for sexual harassment, and California’s interpretation broadens the “severe or pervasive” standard by instructing courts to take the “totality of circumstances” into consideration, according to NCSL research.
“These are all significant developments, that are part of a growing trend among state legislatures in the wake of the #MeToo Movement to bring greater awareness, and ideally an end to the pervasive culture of harassment in many industries,” Hawkins said.
Minnesota also is considering legislation eliminating the severe or pervasive standard.
“I think people should have their day in court,” said Minnesota state Sen.
The bill passed the House in March but failed to pass in the Senate before voting adjourned in May, according to NCSL research.
A similar bill was proposed in 2017, Dziedzic said, but it wasn’t successful. That could change, however, as the #MeToo movement gave politicians a good opportunity to not only check in with their own harassment policies but also address those of the businesses in their state, she said.
“A lot of the companies here have pretty good policies,” she said. “I think it was an awakening for businesses to step up and touch base to make sure that everyone is aware of what is acceptable workplace behavior.”