Don't scrap the "severe or pervasive" standard in sex harassment cases

There are probably worse ideas, but I can't think of any right now.

Legislation is pending in Minnesota (House File 4459) that would expressly remove the "severe or pervasive" requirement for a sexual harassment claim under the state Human Rights Act. 

According to news reports, the measure has bipartisan support in the state legislature, although the Chamber of Commerce hasn't taken a position yet.

I'll take a position. This is a terrible idea. Horrible. No-good. Very bad. I hope it fails, and if it succeeds, I hope the other 49 states have the good sense not to follow Minnesota's lead.

Minnesota's current statute more or less tracks the federal definition of unlawful harassment. In other words, the statute has three "legalistic" definitions, including one for what we know as "hostile work environment":

Sexual harassment" includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when:
*     *     *
(3) that conduct or communication has the purpose or effect of substantially interfering with an individual's employment . . ., or creating an intimidating, hostile, or offensive employment . . . environment."


I wish there were a better way to express the legal standard, but this is the one that just about everybody uses. It's not self-explanatory.

So, how is a court to determine whether the "conduct or communication" had the "purpose or effect" of "substantially interfering" with the plaintiff's employment or created an "intimidating, hostile, or offensive" environment?

"Severe or pervasive"

Here's how: The courts determine it by looking at whether the harassment was "severe" -- meaning bad -- or "pervasive" -- meaning frequent. This requirement exists (under federal law, thanks to the U.S. Supreme Court) for a reason. It helps to keep the courts from getting bogged down in litigation every time an employee tells an off-color joke that isn't received well. Or pats a co-worker on the shoulder, or tells her that she's cute, or calls him "Honey." 

Behavior that might get an employee counseled, disciplined, or even terminated does not necessarily give one the right to sue over it.

"Workplace sexual behavior is a continuum." -- Albert Einstein
(DISCLAIMER: Albert Einstein didn't really say that.)


Sexual behavior in the workplace is a continuum. At the extreme end of the continuum, you have the most egregious and criminal behavior, such as a rape or a sexual assault. Slightly "below" that, but still egregious, you have "quid pro quo" harassment, where an employee is threatened if he or she won't agree to sexual demands. Below that, and still illegal, is "rewarding" employees who play the game and "penalizing" those who won't or can't. Near this point, or perhaps a bit below it, would be a work environment that is permeated with sexist or sexually oriented behavior with no threats, rewards, or penalties, but to the point that employees of the "targeted" sex can't stand to come to work. A bit below that would be behavior that might not be that bad if it occurred only occasionally, but it's all the flippin' time, every flippin' day.

All of those are, and should be, illegal sexual harassment.

But then our continuum begins to transition into what I'll call the merely "inappropriate." David has too much to drink at the office holiday party and tells one off-color joke (which was actually pretty funny, and although you wouldn't repeat it at work, you were sure to tell your spouse when you got home, and you both had a good laugh). Skylar talks to her co-workers about the finer points of BDSM after streaming the Fifty Shades trilogy. Ashley keeps her latest Victoria's Secret catalog on her desk so she can place an online order for a new bustier during her work break. Zane gets along well with his female co-workers, but he likes to read Playboy while he's eating lunch. Hotspur, in a weak moment, calls a co-worker an obscene name based on a biological characteristic unique to the co-worker's gender, but he doesn't mean it in a "sexual" way.

Should the employer act upon these behaviors? Absolutely. These are issues for Human Resources and can probably be addressed through training, counseling, and (if necessary) discipline or even discharge.

But should the offending employees or the employer get sued? Not unless there's more to these scenarios than what I've told you.

You've gotta draw the line somewhere

An issue that courts have to deal with all the time is drawing the line between "unpleasant" or "inappropriate" or "rude" behavior, on the one hand, and behavior that is so awful it's legally actionable, on the other. The legal system can't force people to be excellent to each other -- if it did, it would collapse under the load. 



A lovely sentiment from Bill and Ted, but it's not what the law is about. The law is here to keep people from engaging in the worst behavior -- in short, it's here to keep us from each other's throats. If we want to be excellent -- and, of course, we do -- then we have to use other means (ethics, beliefs, etiquette, social pressure, HR, etc.) to govern our behavior.

Part of the job of a court or a legislature is figuring out where to draw that line, which requires the creation of a legal standard, and applying that same standard in all similar cases so that the outcomes are relatively consistent, predictable, and fair to everyone.

"Inappropriate" versus "illegal"

The same concept applies in the context of sexual harassment. Courts have to have a legal standard for determining whether "inappropriate" workplace behavior has reached the "you can sue over it" level. The way they've done this since the mid-1980s is to require -- for a lawsuit -- that the behavior be "severe or pervasive." It's an "either/or" -- it doesn't have to be both. So if, heaven forbid, you're sexually assaulted by your boss, you don't have to wait to sue until after he's done it several times. A sexual assault is so "severe" that it doesn't have to be "pervasive." But if your boss only makes inappropriate jokes, you probably won't have a valid lawsuit unless he tells those jokes a lot. The boss's joking is not especially "severe," so you can't sue him unless the joke-telling is "pervasive."

Where Minnesota's H.F. 4459 goes wrong

Certainly a legislature can decide where the line between "inappropriate" and "harassing" behavior should be drawn, and the courts would normally have to follow what the legislature says. But in Minnesota H.F. 4459, there is no "replacement" standard. The bill says only that the behavior does not have to be "severe or pervasive" to be actionable.

Assuming that not all behavior of a sexual nature is "harassment," just how are the courts supposed to draw that line? Why didn't the sponsors of the bill draw the new line themselves? If "severe or pervasive" is unfair, then what's the alternative?

Anyone?

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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