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Legislature Makes Sexual Harassment Claims Easier to Prove

SUMMARY:  Until this year, a person claiming harassment, including sexual harassment, needed to prove the “harassment” affected the employee’s “tangible productivity.”  The Legislature lowered the level of proof required to win a claim.  “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.”  An employee may have a claim for “harassment” if another worker’s behavior makes it “difficult” to do the job.

TAKEAWAYS: See our thoughts on the importance of anti-harassment training. 

Legislature Makes Sexual Harassment Claims Harder to Defeat

SUMMARY:  Until this year, a person suing for hostile work environment harassment needed to prove the behavior was “severe or pervasive.”  “Stray remarks” in the workplace could not justify requiring the employer to prove that it based its decisions to hire or promote on legitimate criteria.  Comments unrelated to the decisions were insufficient to create liability.  Beginning this year, the Legislature eliminated the “stray remarks” defense.  A single incident of “harassing” conduct is enough to push a case to trial.  An employee can prove hostile work environment with the totality of the circumstances “and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a non-decision maker, may be relevant, circumstantial evidence of discrimination.  In that regard, the Legislature [rejects] the ‘stray remarks doctrine’.”

TAKEAWAYS: Employers may wish to ensure their anti-harassment policy is current.  Employers may also want to ensure they investigate all claims of harassment even if the allegations involve conduct that appears isolated or trivial.