Short Take: Virginia Ain’t For Lovers

Changes have been proposed to Virginia’s Human Rights Law’s definition of sexual harassment that give rise to an interesting, and growing, constitutional conundrum. From HB 1418:

“Unlawful discrimination on the basis of sex” includes harassment on the basis of sex. Conduct amounts to harassment on the basis of sex when (i) submission to unwelcomed sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature is made either explicitly or implicitly a term or condition of a person’s employment; (ii) submission to or rejection of such conduct by a person is used as the basis for employment decisions affecting such person; or (iii) such conduct has the purpose or effect of unreasonably interfering with a person’s work performance or creating an intimidating, hostile, or offensive working environment.

While subsections i and ii are fairly straightforward and unremarkable, subsection iii raises an issue by prohibiting conduct, which may be physical or verbal if the definition in subdivision i applies across the board, that either “has the purpose or effect” of offending someone. If the bill was limited to conduct that has the purpose of being offensive, that would be one thing, akin to an intentional mens rea, and giving notice to the person engaging in the conduct with a malevolent purpose that the conduct is wrong and unlawful. No biggie.

But “effect”? Notably, the bill is written in the disjunctive, so that either will suffice, rather than both, which would make it an objective and subjective standard. Wrongful conduct could be proven by the accuser’s complaint that she was offended, that it felt hostile and intimated her, that it created a hostile working environment, no matter how objectively benign it was or the absence of any intent to offend. The most delicate worker’s feelings rule.

There is a very real concern that the “reasonable person,” a bar that was squishy at best but at least provided some basis to argue that conduct which offended a particularly fragile person, or a person particularly inclined to find offense under every rock, fell below any objective measure of wrongful conduct.

Get asked on a date by a co-equal worker? Is that the start of a beautiful relationship which will ultimately produce seven grandchildren or a sexually hostile environment? After all, if a person doesn’t want to go on a date, she can just say no. On the other hand, she may passionately believe that she’s entitled to a workplace where no guy even suggests such a thing, unless, of course, she wants him to.

The liability under this law would fall on the employer for the conduct of the offending employee, which adds an additional layer to the problem. Should an employee complain to her employer that she feels offended by someone, with no implication that she would suffer any employment-related consequences, what’s the employer to do about it to ameliorate the problem?

The “offending” employee can’t defend himself, as his intentions are irrelevant if the offended employee claims offense. And, of course, this is the sort of claim that’s rife for abuse. Don’t like someone? Accuse him of offending you. Stare rape, perhaps. Try to disprove it. Overheard a joke between a couple guys at the water cooler in a private conversation about one’s date last Saturday night. That’s all it would take to create a sufficient claim for a hostile working environment.

The Virginia bill isn’t uniquely bad, but is part of a trend that separates purposeful discrimination from the “victim’s” feelings of hostility, no matter how far-fetched, delicate or, well, deceitful. While we remain a few steps away from “working while male” being a statutory cause of action, the rational lines that separate lawful, ordinary, benign conduct from claims that weaponize the feelings of the victim that can’t be challenged as a liability minefield for employers.

10 thoughts on “Short Take: Virginia Ain’t For Lovers

  1. KP

    “she may passionately believe that she’s entitled to a workplace where no guy even suggests such a thing, unless, of course, she wants him to.”
    …and then? She gets offended because he didn’t ask her out & complains??
    Wait, he’s gay and his rights trump a straight female’s, so he complains she flounced her hips as she walked past and offended him!
    Anarchist groups do well every time some Govt passes laws like this..

  2. Grant

    I don’t see any substantive difference between this and NYC’s gender discrimination law. (See, e.g. Hernandez v. Kaisman, 957 N.Y.S.2d 53, 58 (1st Dep’t 2012) (Under NYC’s law, hostile work environment gender discrimination claims don’t have to be severe or pervasive).

    But we already knew NY is not for lovers. (Though Kaisman could not be termed a lover.)

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