by Hans Bader, January 18, 2021
“Old bills never die, they just wait for votes,” notes the East Bay Times. A bad bill can die in one legislative session, only to come back with a vengeance in the next session, and get passed due to more intense lobbying, or the death or retirement of opposing lawmakers.
That may happen this year in Virginia. One example is the resurrection of a complicated and confusing workplace harassment bill I discussed last year. It died in March 2020 on a 23-to-17 vote, apparently after legislators became concerned about the strange way it defined “workplace harassment.” That bill, HB 1418, banned both “sexual harassment” and “workplace harassment” at workplaces with five or more workers. It also redefined what “harassment” means.
That bill has now come back from the dead. It has been re-introduced in the House of Delegates as HB 2155. And a more extreme version of the bill was introduced in the state senate as SB 1360.
These bills say “conduct may be workplace harassment regardless of whether” the “conduct occurred outside of the workplace.” And they omit the requirement that conduct be “unwelcome” before it can constitute harassment. That requirement is found in federal sexual harassment laws and court rulings.
Furthermore, the bills say plaintiffs can sue even if they “participated in” the conduct. That might allow workers to sue their employer over welcome participation in foolish activities with co-workers that they later regret, or even conduct they instigated that resulted in embarrassment or discomfort.
The Senate bill, SB 1360, contains a new provision that will make things even worse for employers. It says that “The construction of similar laws in federal courts or other jurisdictions shall not be used to limit the availability of remedies under this chapter.”
So if this bill is enacted, employers will not longer be able to get lawsuits over trivial things dismissed by citing federal court rulings dismissing lawsuits over similarly trivial conduct. Workers will be able to make a mountain out of a molehill.
And businesses trying to comply with the law won’t even be able to look at existing case law to shed light on whether they are in compliance, under this bill. That will create a great deal of confusion.
What sexual harassment means, legally, is fleshed out for employers by rulings in the federal courts, such as the Supreme Court.
Those rulings “drawing the line” for employers, provide valuable guidance for employers as to what is — and isn’t — sexual harassment.
But these Virginia “workplace harassment” bills don’t follow that guidance. And the Senate bill explicitly rejects the “construction of similar laws” against sexual harassment by the “federal courts.”
These bills do include various factors as to what it considers “workplace harassment.” But only some of them are consistent with what the federal courts say in the context of sexual harassment, and they omit other factors cited by the courts.
These “workplace harassment” bills apply to all employers with five or more workers.
Federal and state law already prohibit sexual harassment and discriminatory harassment against most workers. Right now, a federal law bans racial harassment at even the smallest employers (42 U.S.C. 1981). But other forms of harassment are not prohibited as comprehensively at small employers.
Employers with 15 or more workers are subject to federal laws categorically forbidding not just sexual harassment, but also harassment based on race, religion, disability, age, national origin, etc. But employers with fewer than 15 workers aren’t subject to most other federal employment laws, only state laws, and employers with fewer than five workers aren’t liable for sexual harassment under state law unless it involves a common-law wrong, such as quid-pro-quo sexual harassment; assault; battery; intentional infliction of emotional distress (severe forms of sexual harassment that intentionally or recklessly cause psychological harm); invasion of privacy; or other torts. (See, e.g., Van Buren v. Grubb (2012); Middlekauf v. Allstate Ins. Co. (1994)).
Additional forms of harassment are illegal under state law at employers with 5 to 14 workers. They are subject to the Virginia Values Act, which bans discriminatory discharges of employees. Courts interpret “discriminatory discharge” to include sexual harassment and discriminatory harassment that creates an intolerable working environment and thus motivates the employee to quit — such as a steady stream of sexual insults. (See Pennsylvania State Police v. Suders (2004)).
It’s a mistake for these Virginia “harassment” bills to imply that it’s irrelevant whether “conduct occurred outside of the workplace,” in a case that’s supposedly about “workplace harassment.” Inappropriate behavior is much less likely to be sexual harassment when it occurs outside the workplace. As Judge Barbara Crabb ruled in one sexual harassment case, “Even top level executives are entitled to make fools of themselves after work and on their own time.” (See Alvey v. Rayovac Corp. (1996)).
Juries should not be told the contrary, as these “workplace harassment” bills do.
In theory, conduct outside the workplace could be “workplace harassment” in rare cases — just as a person could theoretically be innocent of bank robbery, despite being seen with a gun in the getaway car near the bank right after the robbery.
But that’s not usually true. The location of conduct is obviously relevant to whether it amounts to “workplace harassment.” So these bills should not suggest to the contrary with their “regardless” language.
These bills also create problems by stating that “conduct may be workplace harassment regardless of whether … the conduct is also experienced by others outside the protected class involved.” This will encourage juries to find liability in some cases where nothing discriminatory is going on, as I explained back in 2020, and may occasionally lead to liability for speech that is protected by the First Amendment, because the state of Virginia lacks a compelling interest in restricting it.
The government has a compelling state interest in eradicating discrimination, but not in banning offensive workplace speech that is not discriminatory — or is not severe and pervasive enough to create a hostile environment. For some employers, such as the producers of TV sitcoms, offensive speech is a necessary part of the workplace, even if some listeners view the speech that occurs in the creative process as “harassing” — as Justice Ming Chin of the California Supreme Court discussed in his concurring opinion in Lyle v. Warner Bros. Television Productions (2006)).
Harassment bans that are vague or confusing can violate the First Amendment by depriving speakers of fair notice of what is forbidden, as the Ninth Circuit Court of Appeals ruled in Cohen v. San Bernardino Valley College (1996).
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.”
Confusing “Workplace Harassment” Bill is Back | Bacon’s Rebellion