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In the BLOG

The “severe and pervasive” standard promotes sexual harassment

One year ago, we wrote about the Seventh Circuit’s lamentable decision in Swyear v. Fare Foods Corp., 911 F.3d 874 (7th Cir. 2018).  During an out-of-town overnight business trip, sales rep Russell Scott asked female colleague Amy Swyear to dinner; followed Swyear into her room, got in her bed, and said he wanted a “cuddle buddy;” touched Swyear’s arms and lower back; and asked Swyear to go “skinny dipping” with him.  Swyear reported the harassment to her employer and was fired a month later.

The Seventh Circuit concluded that there was no sexual harassment because the unwelcome comments, advances, and touching occurred only once.  In short, the court found that the harassment was not sufficiently “severe and pervasive” to constitute a hostile work environment.  This case sets a dangerous precedent: sexual harassment is perfectly legal, as long as it only happens once.  The court’s decision emboldens workplace predators and places employees at risk.

Fortunately, lawmakers in a few states are reconsidering the harsh “severe and pervasive” standard in sexual harassment and hostile work environment cases. 

California abandons the “severe and pervasive” standard.

 In 2018, California law lowered the burden for plaintiffs.  Instead of establishing severe and pervasive harassment, employees must show only that:

[T]he harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.

California Government Code § 12923(b).

New York follows suit.

California isn’t alone.  Just last year, the New York legislature also eliminated the “severe or pervasive” standard.  The new law further expands protections for victims of harassment and discrimination. For example, beginning on February 8, 2020, the NY Human Rights Law applies to all employers within the state.  Previously, employers with fewer than four employees were not required to comply with New York’s anti-discrimination law. Effective August 12, 2020, the statute of limitations for sexual harassment employment cases will be extended from one year to three years.

Stop giving sexual harassers a free pass.

The Seventh Circuit’s decision in Swyear promotes a culture of sexual harassment.  Giving sexual harassers a free pass excuses employers from implementing robust anti-harassment policies and conducting meaningful training, condones employees’ bad behavior, and discourages victims from reporting harassment.  Until courts like the Seventh Circuit get with the program, we’ll have to rely on legislatures. Hopefully, other states will follow the example set by California and New York. It’s time for a new legal standard for sexual harassment.

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