An Arnold & Porter Kaye Scholer partner urged California lawmakers Thursday not to lower the standard of proof for sexual harassment, arguing that state and federal courts in the Ninth Circuit have “done a good job” handling such complaints under current law.
David Reis, head of Arnold & Porter’s labor and employment group, told a joint legislative committee hearing studying whether the standard is adequate that high-profile harassment cases highlighted by groups such as “Me Too” and “We Said Enough” already go “well past the legal line.”
Reis’ testimony was part of a wide-ranging hearing prompted by the national uproar over numerous harassment accusations as well as complaints about the culture in California’s Capitol—complaints that have led to the resignations of two Assembly members and the retention of law firms for investigations.
State lawmakers have already responded with legislation that includes a bill that would ban secret settlements in sexual harassment and sexual discrimination suits.
Reis compared news coverage of the national misconduct fury to learning that lead-footed drivers are “causing lots of problems” and “nobody is reporting it.”
“The question is that whether in response to people driving 90 and 100 miles per hour is the appropriate solution for us to lower the speed limit and say that 65 or 55 is too high, it ought to be lower,” he said. “The shocking conduct we’re all seeing, I would submit to you, is exceeding the current speed limits by far.”
Senate Judiciary Chairwoman Hannah-Beth Jackson has called for a review of whether the “severe or pervasive standard” required for plaintiffs to prove hostile workplace harassment is too high a bar. Jackson said Thursday she’s keeping an open mind about possible changes. She has not introduced legislation.
“The impetus for our hearing is the fact that sexual harassment seems to be able to endure despite current laws against it,” she said. “We may all conclude that some kind of change to the law is needed. We may all conclude that our current legal standards are sufficient but that they’re sometimes misapplied by the courts. Perhaps we’ll determine that the standard is best left alone.”
Wendy Musell, a plaintiff-side employment partner at Stewart & Musell, said too often courts are dismissing misconduct as a one-time occurrence or a “stray remark.” Judicial decisions, too, in harassment cases are inconsistent, she said.
“There’s different justice depending on which courtrooms and judges you get,” Musell said.
A Senate Judiciary Committee white paper suggested that lawmakers could consider changing California’s standard to a finding—first suggested by U.S. Supreme Court Justice Ruth Bader Ginsburg in Harris v. Forklift Systems—that the harassment so altered working conditions for the plaintiff that it became “more difficult to do the job.” Another alternative, the committee wrote, is New York City’s human rights law, which was interpreted by an appellate court to mean that harassment occurs when a plaintiff proves she has been treated “less well” than her co-workers because of her gender.
Reis, however, cautioned that changing harassment laws would prove “a very clumsy way to shape human behavior.” He suggested lawmakers consider ways to “immunize” employers for passing along information about workers’ harassment records to other future employers.