“BE HEARD in the Workplace” Act Attempts To Fix Sexual Harassment/Discrimination Laws

Don't get too excited. It will probably pass in the House, fail in the Senate, and be vetoed even if it does pass. But still, the “BE HEARD in the Workplace” Act (short for “Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act”) just introduced would be a major step in the right direction on sexual harassment law.

The bill would fix some major issues with existing sexual harassment laws that I've been complaining about for years:

Intern sexual harassment would be illegal: Right now, there is not a single federal law making sexual harassment of unpaid interns illegal. They aren't employees, so Title VII doesn't protect them. New York City, along with Washington, D.C., Delaware, and Oregon, have laws against sexually harassing unpaid interns. Otherwise, interns are currently sitting ducks in the workplace. The law also extends protections to  independent contractors, interns, fellows, volunteers, and trainees, regardless of remuneration or academic credit, and employees of smaller companies (right now it's 15 or more employees, so small employers get a free pass unless there's a state or local law saying otherwise).

Protection for LGBTQ employees: This law would add gender identity and sexual orientation to Title VII protections, clearing up any doubts about whether Title VII currently protects these employees (which I think it already does based on Obergefell).

Damages fixed: While age discrimination cases are currently subject to different damages and all damages are capped, this would eliminate damage caps and eliminate the ageist bias in the current law.

Fixes sexual harassment standard: The law would eliminate the ridiculously difficult-to-prove "severe or pervasive" standard (which management-side lawyers and some courts say is severe AND pervasive), clarify that sexual harassment is a form of workplace harassment, define workplace harassment as a practice that unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment, and identify factors to be used to determine whether a practice constitutes workplace harassment, but also clarify that no single factor alone can determine whether a practice constitutes workplace harassment.

Fixes standard of proof: The law clarifies that employees must only prove that discrimination or retaliation was a motiving factor under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Nondiscrimination Act (right now courts have said that age must be the sole factor in age discrimination cases, and for all it must be both a substantial and a motivating factor).

Statute of limitations: Changes the statute from 180/300 days (depending on the state, which is silly) to file with EEOC to 4 years.

No mandatory arbitration: The law prohibits pre-dispute mandatory arbitration agreements, and creates guardrails for post-dispute arbitration agreements.

Contractor discrimination prohibited: The law reinstates the Obama ExecutiveOrder reversed by Trump that ensures federal contractor compliance with workers’ rights laws, including maintaining workplaces free from harassment and discrimination. 

These are just a few of the key provisions. It's basically my wish list for fixing employment law, so thanks to the bill's sponsors Senator Patty Murray, Congresswoman Katherine Clark, and Congresswoman Ayanna Pressley.

Now, if only it had a chance in he** . . .