On January 30, a subcommittee in Virginia’s House of Delegates voted 5-to-2 to adopt a revised version of HB 1418, a bill to expand employers’ liability for sexual harassment. The bill originally applied to employers with 6 to 14 employees; now it applies to all employers with more than five employees. Originally, while the bill provided for unlimited damages in sexual harassment cases, it limited court ordered attorney fees payable to the plaintiff’s lawyer to 25% of the damages awarded. Now, the limit on attorneys fees has been removed, so an employer can be ordered to pay far more in attorney fees than it ends up paying in damages to the plaintiff.
The revised version also changes the definition of sexual harassment, and makes employers liable for “workplace harassment” based on additional factors other than sex. Its sexual harassment definition omits a critical element of the definition of sexual harassment according to the U.S. Supreme Court and federal appeals courts, “unwelcomeness.” The amended version of HB 1418 adopted on January 30 has a long list of “rules” that “shall apply” in defining sexual harassment (probably found in no other state or federal law), yet it omits the core element of “unwelcomeness” that the Supreme Court says defines sexual harassment.
Unwelcome means unsolicited and uninvited. If a worker invites or solicits something from a co-worker, they can’t later sue over that something, even if it offended them. For example, if you ask your co-worker about his sex life or his porn collection, or to discuss a sexual problem, and his response offends you, you can’t sue your employer over it, because you solicited or invited the response. That’s true even if the offensive content did contribute, to some extent, to a hostile work environment. Sexual conduct must be both unwelcome and create a hostile work environment (among other things) before the employer can be sued over it under longstanding sexual harassment precedent.
You shouldn’t be able to sue your employer for something that you invited, and it wasn’t responsible for causing.
The Supreme Court said that the very essence of a sexual harassment claim — in lawyer lingo, its “gravamen” — is that the conduct was “unwelcome.” As it put it, “The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome.’” It said that in its decision in Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986).
There are federal appeals court rulings that say the Supreme Court meant what it said, and if you incite your co-workers to do something, you can’t sue your employer over it even if it offends you. For example, a woman who used vulgar language with her male co-workers was not allowed to sue when they used vulgar language back, because the court found she effectively invited it, in the appeals court ruling in Scusa v. Nestle USA, 181 F.3d 958, 966 (8th Cir. 1998). As that court explained, “the conduct at issue must be ‘unwelcome’ in that the plaintiff neither solicited it nor invited it.”
The government shouldn’t be able to punish an employer for speech between workers that a worker solicited or invited. Society has a really compelling interest in preventing sexual harassment, verbal or physical. But it has much less of an interest in punishing offensive language that a worker can avoid simply by not soliciting or inviting it — like not asking a co-worker to discuss sexually offensive subject matter.Yet the bill explicitly states that “Conduct may be workplace harassment regardless of whether…the complaining party participated in, the conduct.” While this statement is true in limited circumstances — forced participation is unwelcome — voluntary participation usually does show something is welcome.
As Judge Alito once noted before he was elevated to the Supreme Court, “there is no categorical ‘harassment exception’ to the First Amendment’s free speech clause,” so government officials can’t just redefine protected speech as sexual harassment. (He said that in his decision striking down a school’s policy banning racial, sexual, and sexual orientation harassment as defining harassment too broadly, in Saxe v. State College Area School District, 240 F.3d 200, 204 (3d Cir. 2001)).
Damages can’t be awarded for constitutionally protected speech, even if it causes someone emotional distress, or makes someone feel harassed. (See Snyder v. Phelps, 562 U.S. 443 (2011); DeAngelis v. El Paso Municipal Police Officers Association, 51 F.3d 591, 596-97 (5th Cir. 1995); Lyle v. Warner Bros. Television Productions, 132 P.3d 211, 231-32 (2006) (Chin, J., concurring)).
So if someone tries to redefine sexual harassment by discarding a crucial element of what constitutes “harassment” under the civil-rights laws, that can create free-speech or other problems. Getting rid of elements of a harassment claim can make a definition too broad. For example, Oregon’s discriminatory harassment regulations got rid of the standard legal requirement that sexual or other harassment create a subjectively (not just objectively) hostile work environment before an employer can be held liable for it. An evangelical Christian fined for religious harassment by Oregon civil-rights officials successfully challenged his fine under the religious-freedom provisions of the state constitution. A concurring judge faulted the rule on free-speech grounds, saying that the regulation should have required proof that the man’s religious proselytizing created a subjectively (as opposed to just objectively) hostile work environment. (See Meltebeke v. Bureau of Labor & Industries, 903 P.2d 351, 363-64 (Or. 1995) (Unis. J., concurring)).
The bill’s omission of “unwelcomeness” is not the only odd thing about the bill’s definition and “rules” regarding what constitutes sexual harassment. It’s just one example of the bill changing the meaning of sexual harassment at employers’ expense, an example I was able to detect on short notice, since the bill only became available on the internet today. Given the bill’s departure from settled notions of what constitutes sexual harassment, I wouldn’t be surprised if more oddities were found in it. That seems like a reason to slow down and not approve the bill in its current form, rather than the committee racing to approve it at tomorrow’s hearing of the General Laws committee.
Another way its definition departs from how federal courts view sexual harassment is that it does not appear to require that conduct be sexist or based on sex to constitute illegal sexual harassment. Quite the contrary, it says that conduct “conduct may be workplace harassment regardless of whether…The conduct is also experienced by others outside the protected class involved.”
In federal court, if conduct is aimed at both men and women, and is equally offensive to both men and women, it is not legally sexual harassment. As the Supreme Court put it in its unanimous decision in Oncale v. Sundowner Offshore Services, 523 U.S. 775 (1998), “We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. ‘The critical issue…is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’” Some conduct is presumed to have occurred based on the target’s sex, like sexual advances, where such an “inference” is drawn. But usually, workplace rumors or discussions of sexual issues are not deemed to be “sexual harassment,” if they are not aimed at women based on their sex, and don’t reflect sexist stereotypes. (See, e.g., Pasqua v. Metropolitan Life Ins. Co., 101 F.3d 514 (7th Cir. 1996); Duncan v. City of Denver, 397 F.3d 1300 (10th Cir. 2005)).
That is true even if such discussions are very offensive to some listeners. The purpose of antidiscrimination laws is to protect people from discrimination, not offensive speech that doesn’t act as a barrier to equal opportunity.
Restricting speech that has an offensive sexual content — but doesn’t disadvantage women and isn’t aimed at them — could end up censoring speech about unpleasant sexual problems in our society that need to be fixed, or shut down creative businesses that produce and disseminate sexual subject matter protected by the First Amendment, like the producers of the adult-oriented TV sitcom who were sued for sexual harassment in Lyle v. Warner Bros. Television Productions, 132 P.3d 211 (2006). The producers of that sitcom escaped liability only because the California Supreme Court interpreted the state’s sexual harassment law as requiring proof that the harassment was “directed at plaintiff because of her sex.” That was something the plaintiff in that case couldn’t show, because the offensive sexual jokes by sitcom writers that she witnessed as a writer’s assistant didn’t target her based on her sex. That “based on sex” limit is not found anywhere in the text of HB 1418. As a result, it could raise First Amendment problems as applied to creative employers, such as university researchers and adult-oriented media, since those employers need to explore disturbing or controversial sexual subject matter, even if it offends some people.
The original version of HB 1418 also had pitfalls. Federal law holds employers liable for allowing a sexually hostile work environment. The original bill held employers liable not only when the work environment was hostile or offensive, but also when the work environment wasn’t hostile or offensive, but someone in the workplace had the “purpose” of creating a hostile or offensive environment through their conduct. That could lead to a lawsuit over a single offensive comment that does not actually harm anyone or have any discriminatory effects, but allegedly has a hostile or offensive purpose. The blog post at this link argues that such liability for “purpose” alone violates the First Amendment, under the logic of court rulings like Saxe v. State College Area School District, 240 F.3d 200, 210-11 (2001).