State Lawmakers Lowering Bar for Workplace Harassment

By many if not most people’s standards, Heidi Clayton was a clear victim of workplace harassment.

A member of the Atlantic City Police Department, Clayton was asked out on dates by a lieutenant, who also commented on her physical appearance and read her a love poem over the phone. Once, the former police chief grabbed Clayton’s behind and said, “That’s the only thing she has going for her.”

But when Clayton sued Atlantic City in 2009, the district court dismissed her case on summary judgment, a decision the Third Circuit Court of Appeals upheld in 2013.

The reason? The courts ruled Clayton’s experiences weren’t “severe or pervasive” enough to meet the legal standard for workplace harassment.

The “severe or pervasive” threshold is the legal standard in federal court and most states when determining if workplace harassment rises to the level to support a lawsuit. But that standard, derived from U.S. Supreme Court decisions in the 1980s and 1990s, does not square with many or most people’s understanding of harassment, particularly sexual harassment victims.

So in the wake of the #MeToo movement, states have slowly started to change the standard. And New Jersey is poised to become the next state to join a growing list of others that have said the “severe or pervasive” threshold is too high to protect women.

Five States and D.C. Already Lowered Harassment Standard

California started the movement to lower the bar for workplace harassment claims in 2018 with the passage of SB 1300, (codified as Cal. Gov. Code § 12923), statutory guidance which specified, among other things, that “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment.” It should be noted, however, that the Assembly Judiciary Committee’s analysis of SB 1300 stated: “It is not at all clear what impact the guidance offered in these non-binding findings and declarations will have on how the courts decide cases, but it does at least put forward the Legislature's understanding of appropriate legal standards.”

In 2019 New York followed California’s lead, passing SB 6577, which eliminated the severe or pervasive standard there.

In 2022 Maryland replaced its severe or pervasive standard with a “totality of the circumstances” standard through the passage of SB 450. That same year, the District of Columbia enacted a law stating that conduct does not have to be severe or pervasive to constitute harassment.

Last year, Colorado and Vermont abandoned the severe or pervasive threshold as well with the enactment of SB 172 and SB 103, respectively.

New Jersey could do away with the standard—and disavow the decisions in Clayton’s and other cases—this year if it passes AB 2443. Law firms are monitoring the measure closely, with lawyers at Seyfarth Shaw LLP recently opining that “New Jersey employers should remain updated on the pending proposal and make sure their harassment policies and training materials are up to date and compliant with New Jersey law.”

States That Have Lowered Bar for Harassment Lawsuits

Five states and the District of Columbia have lowered the threshold for workplace harassment lawsuits from the “severe or pervasive” standard that prevails in federal courts and most states. New Jersey could become the sixth state to do so if it passes legislation (AB 2443) pending there. 

Old Standard Continues to Hold Sway in Some Places

Still, the severe or pervasive threshold continues to be upheld in the courts. Last year, both the Minnesota Supreme Court and the Third Circuit Court of Appeals reaffirmed the standard in rulings that drew attention in legal circles. 

Today, the U.S. Equal Employment Opportunity Commission explicitly states on its website: “For inappropriate behavior to rise to the level of illegal harassment, it must be unwelcome or unwanted. It must also be severe (meaning very serious) or pervasive (meaning that it happened frequently).”

In a typical ruling, the Eleventh Circuit affirmed in a 2020 harassment case that “unsavory and unpleasant” behavior does not rise to the level of the “severe or pervasive” standard. As Forbes contributor Eric Bachman wrote, this sort of thinking about the standard is increasingly being viewed “as out of touch with current societal norms and creating an unnecessary roadblock for victims of harassment to have their claims decided by a jury.” 

Standard-Lowering Trend Likely to Continue

Lawyer Elias Kahn, senior product manager for labor and employment, tax, employee benefits and executive compensation, and federal government, on the Practical Guidance team for LexisNexis®, said he’s been following this issue since 2009, when a New York State appellate court ruled that a New York City law set a lower threshold for harassment than the severe or pervasive standard.

“It didn’t really ripple,” Kahn said of that ruling. “It took about 10 years for this issue to come back around again.”

Now, with the fervor over the #MeToo Movement, he said, “it’s starting to snowball.”

“There are other states where I wouldn’t be surprised to see this as well,” he said. “It would not surprise me in the least to see this trend continue.”

Kahn noted that, technically, the lowering of the severe or pervasive standard is being implemented in different ways in different states. Some states, he said, continue to call their standard severe or pervasive, but they’ve changed the definition of what that means. Other states have removed the entire terminology altogether.

Whatever the case, Kahn said a reduction of the threshold will not likely significantly impact employer workplace harassment policies or even cause a sharp increase in the number of harassment cases filed. Rather, he said, it will likely make it easier for harassment plaintiffs to beat employers’ summary judgment motions.

And he said many Americans will likely support that development, because the traditional severe or pervasive standard is so tough that it has prevented cases that many find offensive from moving forward—like Clayton’s case. Kahn also mentioned a case from 2000, in which the Ninth Circuit Court of Appeals held that a city phone dispatcher could not bring a hostile work environment claim where a coworker had forced his hand beneath her sweater and bra while she was on a call.

Due to these types of cases, Kahn said, “I’m pretty sure we’re going to see more of these types of laws relaxing or eliminating the severe or pervasive standard."

—By SNCJ Correspondent BRIAN JOSEPH

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