The #MeToo movement brought awareness to the problem of sexual abuse and harassment, particularly within the workplace. This social movement opened the door for victims to report incidences of sexual harassment, misconduct, and violence at the hands of their supervisors and co-workers.
There has been a response at both the federal and state levels. As a result, there are more legal protections available under the new laws that address sexual harassment and assault in the workplace. It is important for employers to know what legal changes have taken place since the #MeToo movement. In this post, we will discuss what employers should know about #MeToo effects on sexual harassment litigation.
What Is Sexual Harassment?
The U.S. Equal Employment Opportunity Commission (EEOC) provides guidelines on discrimination and harassment on the basis of sex. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- Submitting to the sexual conduct is made a part (either explicitly or implicitly) of the individual’s employment;
- Submitting to or rejecting the conduct is the basis on which employment decisions are made for the individual; or
- The purpose or effect of the conduct unreasonably interferes with the individual’s work performance or creates an intimidating, hostile, or offensive working environment.
The overarching requirement for sexual harassment is that the conduct is unwelcome.
A victim can be anyone who feels the effects of the offensive conduct. This may or may not be the person actually harassed. The harasser can be the same sex as the victim and either a supervisor, co-worker, agent of the employer, or non-employee. Lastly, the conduct does not necessarily have to be sexual in nature. Demeaning someone based on their gender is just as much sexual harassment as unwanted sexual touching.
At Smithey Law Group LLC, we can help you determine whether certain conduct is sexual harassment or not. Our team knows how to view your facts in the eyes of the court.
Claims for Sexual Harassment
There are both federal and states laws in place that protect workers from sexual harassment. States have the freedom to pass legislation with stricter requirements than under federal law. In light of the #MeToo movement, some states have done just that.
Title VII of the Civil Rights Act of 1964 (Title VII)
Title VII is a federal law that prohibits employers from discriminating against employees on the basis of sex. While the scope of Title VII continues to evolve, sexual harassment is a form of sex discrimination. Victims of sexual harassment can bring a claim seeking compensation and other remedies under Title VII.
Current and former employees are protected under Title VII, as well as job applicants. This leaves out independent contractors, which includes a large number of workers as the gig economy continues to grow. However, states are beginning to enact legislation that offers legal protection against sexual harassment for independent contractors.
#MeToo Legislative Changes
The #MeToo effects on sexual harassment litigation are far-reaching, prompting both federal and state changes.
The misconduct of Harvey Weinstein (and others) brought to light gaps in federal laws that allowed these individuals to cover up sexual harassment. Congress amended the Internal Revenue Code in response. Section 162(q) now prohibits anyone from taking a deduction for any settlement or payment related to a sexual harassment or abuse case if it is subject to a nondisclosure agreement. In other words, a person who pays a sexual harassment settlement cannot claim that money as a business expense and take a deduction if the payment was made to keep the victim quiet per a nondisclosure agreement.
As a result of the #MeToo movement, states across the country are addressing sexual harassment within their own laws. It is important to look at the response of different states to the #MeToo movement because other states may follow suit.
For example, some states, like California, Delaware, and New York, have sexual harassment training requirements for employees of all levels. Other states are restricting the types of provisions in non-disclosure agreements as a way to stop harassers from using these documents to hide instances of sexual harassment and abuse.
To bring a sexual harassment claim under Title VII, the conduct must be “severe or pervasive.” This means the actionable conduct can be either one offensive instance or a series of less serious instances that change the work environment. As of now, Washington, Delaware, New York, and California have decided that this bar was too high. Consequently, these states enacted laws lowering the standard for what type of conduct qualifies as sexual harassment. The effect of this is that victims can more easily bring sexual harassment claims against their employer in state court.
Maryland Disclosing Sexual Harassment in the Workplace Act
In 2018, Maryland adopted the Disclosing Sexual Harassment in the Workplace Act (the Act). Under the Act, an employment contract, policy, or agreement cannot contain a waiver of any substantive or procedural right or remedy to a future claim of sexual harassment or retaliation for reporting such harassment. An employer cannot take adverse action against an employee for not agreeing to the contract if it contains the prohibited provision. Examples of adverse action include discharge, suspension, demotion, or retaliation. Lastly, employers who enforce or attempt to enforce a prohibited provision are liable for the employee’s attorneys’ fees and costs.
This summary of legislative changes is certainly not comprehensive, but provides an overview of what employers should know about #MeToo effects on sexual harassment litigation.
Contact an Experienced Sexual Harassment Legal Matters Lawyer Today
Joyce E. Smithey has been representing employers facing sexual abuse and harassment claims for decades. Together, she and her team have over 158 years of experience and know the complexities of the law governing sexual harassment. For a confidential, initial consultation, call 410-881-8980 or request an appointment online today. Let us put our knowledge and experience to work for you.