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California LegislatureSexual harassment

California lawmakers ponder if legal standard for sexual harassment cases is too high

State Sen. Hannah-Beth Jackson (D-Santa Barbara). (Rich Pedroncelli / Associated Press)
State Sen. Hannah-Beth Jackson (D-Santa Barbara). (Rich Pedroncelli / Associated Press)

Is it too difficult for victims of sexual harassment to make their case in court? California legislators wrestled with that question Thursday at a hearing examining the legal threshold for harassment cases under state and federal law.

Prompted by the high rate of sexual harassment cases dismissed by judges, lawmakers focused on the standard that victims must prove harassment was “severe or pervasive” in cases alleging a hostile workplace.

“It's important because all efforts to enforce emanate from the legal standard that exists,” said state Sen. Hannah-Beth Jackson (D-Santa Barbara), who chaired the panel.

Witnesses presented a mixed assessment of the threshold, which relies on a judge’s interpretation of whether a person endured behavior that was “severe or pervasive” enough to materially alter that person’s workplace experience.

“The standard essentially forces people to figure out how to accommodate or navigate these types of behavior at work until they effectively become intolerable,” said Jessica Stender, an attorney with Equal Rights Advocates, a San Francisco civil rights group. She stopped short of changing the standard, suggesting instead efforts to ensure judges are applying the standard fairly.

David Reis, head of the labor and employment practice at the law firm Arnold & Porter Kaye Scholler, warned that altering the standard in the wake of a spate of stories of sexual harassment in various industries could have unintended consequences. 

“The law tries to separate the trivial and the boorish from things that are truly offensive and inappropriate. It's not an easy task,” Reis said, adding that California courts have typically done a good job.

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