With the #MeToo movement, the “severe or pervasive” standard is starting to be challenged by state legislators and legal practitioners. Given the realities of a movement that has uncovered a stark imbalance of power between victims of sexual harassment and management in the workplace, is “severe or pervasive” just another societal bar to justice? While a handful of states, including New York, have taken affirmative steps to alter or attempt to alter the standard, New York City has been at the forefront of this issue for several years, having established a standard for sexual harassment that is more relaxed than the federal standard.

While California has recently passed legislation implementing a lower standard, more akin to the New York City standard, the question remains whether other states, including New York state, will adopt a lower standard which will positively impact the probability of success in sexual harassment claims tried in court. With many recent headlines concerning sexual harassment in the press, there should be a corresponding correlation with the number of victims who have their sexual harassment cases heard in court; if there is no such correlation, it could perhaps mean that the law should be changed in order to alter the legal landscape for sexual harassment that currently exists in the United States.

The federal standard that has developed under case law provides that in order for a plaintiff to allege a claim for sexual harassment in violation of Title VII of the Civil Rights Act of 1964 the following elements are required: (1) member of a protected class; (2) subject to unwelcome sexual harassment; (3) harassment was based on sex; (4) harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment and create an abusive work environment; (5) sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive to be so; and (6) some basis for employer liability has been established. Faragher v. City of Boca Raton, 524 U.S. 775, 787-89, 118 S. Ct. 2275 (1998); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986). Courts have determined that “conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment–an environment that a reasonable person would find hostile or abusive–is beyond Title VII's purview.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21- 22, 114 S. Ct. 367 (1993). There is also no violation if the victim does not subjectively perceive the environment to be abusive, and the conduct has not actually altered the conditions of the victim's employment conditions. Id. In order to determine whether harassment is severe or pervasive, a “totality of the circumstances test” applies where courts consider “the frequency of the discriminatory conduct; the severity, whether it was physically threatening or humiliating, a mere offensive utterance, and whether it unreasonably interfered with the employee's workplace.” Faragher, 524 U.S. at 788. Courts have held that “simple teasing, offhand comments or isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'” Id. A rape of one employee by another employee in the workplace is an example of a single incident that could meet the standard. See, e.g., Ferris v. Delta Airlines, Inc., 277 F.3d 128 (2d Cir. 2001).

The First Department has held that under the New York City Human Rights Law, conduct need not be “severe or pervasive” to constitute a hostile work environment. Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dep't 2009). The legal standard in New York City is not whether the harassing conduct was “severe or pervasive” but when looking at how someone is treated has that person been treated “less well” because of their gender. Id. Thus, pursuant to the New York City Human Rights Law, conduct need not be “severe or pervasive” to constitute a hostile work environment, the standard that has evolved through federal Title VII cases, instead the analysis is one of differential treatment and whether a victim has been treated “less well” than other employees in the workplace due to gender. In New York City a violation is defined as more than “petty slights and trivial inconveniences,” yet, the reduced standard still creates the possibility for a greater number of claims alleging unwanted sexual misconduct to survive summary judgment and obtain meaningful relief from the Courts. Madina Toure, California to Consider New York City's Legal Standard for Sexual Harassment, Observer (Jan. 11, 2018). On March 28, 2016, New York City's lower sexual harassment standard was codified by N.Y.C. Local Law 35 which amended § 8-130 of the Administrative Code of the City of New York.

A California bill, seemingly designed to mirror New York City's broad legal definition of sexual harassment, signed into law Sept. 30, 2018, altered the standard of proof for victims pursuing state law claims in California. S.B. 1300, 2017–18 Reg. Sess. (Cal. 2018). The California legislation, signed into law by former Governor Jerry Brown, was undoubtedly a response to the momentum of the #MeToo Movement and the obstacles that victims face under the severe or pervasive standard. Under the new provisions of California SB 1300, “a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment.” Per the new legislation, California now follows the standard referenced by Justice Ruth Bader Ginsburg in her concurring opinion in Harris v. Forklift Systems. Under this standard, “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.” Harris, 510 U.S. at 25-26. California's new standard, like New York City's standard, is a lower and more victim friendly standard than the severe or pervasive hostile work environment standard. Under the new California law, a plaintiff is also no longer required to demonstrate that the sexual harassment altered the conditions of employment to the extent required under federal law. It is sufficient for a plaintiff in California to allege that a single incident of harassment made it more difficult for them to do their job. Cities in California, like Newport Beach, in response to the state's recent laws and the #MeToo movement, are also beginning to consider revising policies to eliminate the severe and pervasive standard. Hillary Davis, In the wake of #Metoo, Newport Beach considers revisions to harassment and discrimination policy, Los Angeles Times (March 22, 2019).

Perhaps in recognition of the new laws in California and in an effort to address the discrepancy between employees in New York City and employees in other areas of New York, New York state legislators have proposed a new standard under New York state's Human Rights Law. Proposed legislation includes Senate Bill S3377, introduced on Feb. 6, 2019, and Senate Bill S3817, introduced on Feb. 15, 2019—both bills are currently before the Committee on Investigations and Government Operations. The legislation proposes that a lower sexual harassment standard, similar to New York City's standard, be adopted by New York state. The bills add language to the existing Human Rights Law, providing for discriminatory harassment based on sex “regardless of whether such harassment or hostile work environment is severe or pervasive.” The legislation also provides that “discriminatory or retaliatory harassment constitutes an unlawful discriminatory practice under this subdivision unless the defendant pleads and proves that the harassing conduct does not rise above the level of petty slights or trivial inconveniences.” Thus, companies can mount a defense to sexual harassment claims if there is proof that the conduct did not rise above “petty slights” or “trivial inconveniences.” The language seeks to align all New York workers under one standard. The proposed legislation also provides that where an aggrieved person fails to complain about the discriminatory harassment or fails to use a particular complaint procedure this is not a partial or complete defense to liability. While Governor Cuomo had also attempted to introduce a proposal to eliminate the severe or pervasive standard in his Executive Budget, the Senate rejected the proposal.

Minnesota is another one of the very few states where lawmakers recently introduced legislation to lower the “severe or pervasive” standard. Minn. H.F. 4459, 90th Reg. Sess. (2018). The legislation amends the Minnesota Human Rights Law by adding the following content—“[a]n intimidating, hostile, or offensive environment … does not require the harassing conduct or communication to be severe or pervasive.” While the proposed legislation was initially met with opposition, the Minnesota House of Representatives passed the Bill with a 113-to-10 vote on March 21, 2019. Briana Bierschbach, MN House votes to remove 'severe or pervasive' standard for sexual harassment, MPR News.

Delaware is another state that has taken affirmative action to modify the standard for sexual harassment claims. Delaware HB 360, which went into effect January 1st, broadens the definition of a hostile work environment in Delaware's Discrimination in Employment Act, in recognition of the high bar to sexual harassment claims. The new Delaware law provides that sexual harassment is unlawful if the conduct “creates an intimidating, hostile, or offensive work environment.” Leslie A. Pappas, Delaware Expands Sexual Harassment Protections to More Workers, Bloomberg Law (August 29, 2018)

Opponents of efforts to lower the standard for hostile work environment cases express concern over the number of lawsuits that may result from a standard that does not require “severe or pervasive” conduct as well as management issues with defining and preventing a new lower level of sexual misconduct in the workplace. It seems that with the #MeToo movement, a new lower standard, akin to the New York City standard and the proposed New York state standard, may assist plaintiffs to survive summary judgment and have their day in court.

Kathryn Barcroft is special counsel at Solomon Law Firm.