The following op-ed was published in the Pasadena Star News on December 1, 2018.
See you in court, office harassers
Workplaces in California should soon become safer now that Gov. Jerry Brown has signed a spate of bills spawned by the #MeToo movement, including one that gives employees the right to hold others accountable the very first time they violate workplace protection laws. That change is earth-shattering.
Sexual harassment victims will be able to pursue claims based on a single grope, slur or other offensive act. The new Omnibus Sexual Harassment Bill, SB1300, eliminates the free pass formerly given bad actors in the workplace. The law, which goes into effect Jan. 1, spells out what kind of workplace harassment is actionable.
Before now, the justice system’s predominately male judges routinely kicked cases out of court based on what I, as a victims rights attorney and survivor of sexual harassment, see as a flawed belief that a single act cannot constitute “severe or pervasive conduct,” the standard the law required to sue for sexual harassment.
The “severe or pervasive” standard is a sliding scale, usually with rape on the severe end and comments or leering on the needs-to-be-pervasive end. In practice, this translated to a host of sexual harassment in the workplace that wasn’t actionable.
Because of the “severe or pervasive” standard, my law firm, and many others, reluctantly told many victims that we could not take their cases. Instead, many victims had to choose between quitting their jobs — not a luxury many people can afford — or going back to work feeling unsafe, ashamed and afraid. Even knowing that a single grab or multiple offensive statements could escalate, I had to advise potential clients about the legal standard and tell many that they did not yet have a viable sexual harassment claim (though they may have a battery claim). Because I’ve heard more accounts of egregious sexual harassment than most, I felt despondent every time I had to tell victims they had not suffered enough to bring a sexual harassment case.
No more. The Legislature has finally recognized the harm from one bad act. Now, when the harassment “sufficiently offends, humiliates, distresses, or intrudes” upon the employee’s ability to perform his or her job, “disrupts the victim’s emotional tranquility,” or “undermines the victim’s personal sense of well-being,” he or she has a case. The law acknowledges the harm experienced by many people whose work lives were forever changed by a single incident.
Think about what this means for working women, the gender most adversely affected by sexual harassment. Even in a workplace where off-color jokes or offensive comments are the norm, the court is only allowed to excuse the work environment if the job itself involves engaging in or witnessing sexually explicit conduct and commentary. In other words, in the majority of workplaces, employers can no longer assert the “it’s only horseplay” excuse, the “wide latitude for transgressive joking” argument and the “we’ve always done it” defense, to name a few.
The law recognizes that the issues involved in harassment and hostile work environment lawsuits are “not determinable on paper.” That means the trier of fact should get the chance to hear and see the evidence and witnesses before the case is decided. This should end the practice of judges kicking sexual harassment cases out of court before trial based on their beliefs about whether the unwanted gropes, slurs, and propositions were bad enough or happened enough to meet the “severe or pervasive” standard.
Detractors of this important new legislation will complain that it is designed to create more work for lawyers like me. Rather, the law holds working adults responsible for all their actions, as we should be. I look forward to safe workplaces throughout California where everyone is treated with the courtesy and respect they deserve. If employers choose not to enforce the clear standards from SB1300, then I can’t wait to see them in court.
Link to story at PasadenaStarNews.com
Genie Harrison of La Cañada Flintridge is upcoming president of the Consumer Attorneys Association of Los Angeles.