Paige Clay and Nicole Riley column: Workplace harassment legislation deserves thoughtful consideration to get it right
April 9th, 2021
      Paige Clay and Nicole Riley
      Richmond Times-Dispatch

Everyone can agree that workplace harassment is an injustice that no one should suffer. Far too often, women, primarily, are subjected to unwanted advances, inappropriate comments or offensive treatment while in the workplace.

Since the Civil Rights Act of 1964, the U.S. Equal Employment Opportunity Commission (EEOC) and our federal courts have worked to identify impermissible workplace conduct and to create the rules by which employers must govern themselves, what employers should do to prevent workplace harassment and when employers will be held accountable for the actions of their employees. Decades of court rulings and agency actions covering a broad range of fact scenarios help employers and employees understand the rules and define when the employer is responsible for violations of those rules.

Failed legislation from this past General Assembly session substantially would have altered these workplace harassment protections. As introduced, this bill would have wiped the slate clean of these decades of federal court precedent and interpretations regarding both prohibited workplace conduct as well as when an employer should be accountable for the bad conduct of its employees.

Virginia state courts would have been starting from scratch in coming up with a new set of rules through court interpretations of the Virginia-specific laws applied to various fact scenarios. Because of how Virginia courts operate, case law might develop very slowly, if at all, and each judge would have to make up the rules as they go, with little guidance from appeals courts.

Consequently, an employee in Richmond could have faced a very different result from one in Roanoke. This inequitable result could insert confusion in a well-settled area of law for employees in recognizing when violations occur and for employers in understanding its responsibilities.

For example, the legislation could have been interpreted to hold employers responsible for the single act of an employee that takes place outside of the workplace. So a conversation between two employees who run into each other at the grocery store could lead to a workplace harassment lawsuit against their employer.

Another example is that the legislation would have allowed someone to sue his or her employer for damages even if he or she was not subjected to the alleged harassment. As written, the bill could have been interpreted as permitting someone to seek money from his or her employer because of a conversation between two other employees about alleged harassment that the complaining party never even witnessed.

This legislation would have had major impacts on small businesses and their employees, as well. Many large businesses have insurance to protect them from these types of suits. Small “mom and pop” businesses do not.

Certainly, employees of these businesses should not be subjected to harassment, but the ability of these small businesses to pay huge settlements is different from that of their large business counterparts. The impact of this legislation on small businesses, many of which still are reeling from the pandemic and trying to stay afloat, was not evaluated prior to the legislation being introduced.

Certainly, as the legislation wound its way through the process, some improvements were made to help bring it more in line with well-settled federal law — but the changes from existing protections remained significant. Often, a bill this impactful is the topic of months of discussion prior to the legislative session with all of the parties at the table. Unfortunately, that didn’t happen in this case.

The circumstances of this past legislative session were challenging for everyone involved. It was a short session, lasting only 46 days. House of Delegates members met through Zoom and were not meeting in person with groups impacted by legislation. While Virginia Senate members met together for committees and their floor sessions, they also were not meeting in person with outside groups or individuals. It was hard for interested parties to meet to discuss legislation and resolve differences.

In the end, the General Assembly elected to wait on this legislation to allow for further thought, consideration and dialogue around these critical issues. Hopefully, this will provide the needed time for all stakeholders to determine, together and in good faith, whether additional state-level provisions are needed to supplement or supplant current federal and state protections and, if so, what those provisions should be. Virginians deserve nothing less.