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The BE HEARD Act Will Overhaul Workplace Harassment Laws

Protester holding sign stating "Sexual Harassment: Not on my Watch
Protester holding sign stating "Sexual Harassment: Not on my Watch
Vania Leveille,
Senior Legislative Counsel,
ACLU National Political Advocacy Department
Lenora M. Lapidus,
Former Director,
Women's Rights Project, ACLU
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April 10, 2019

For more than a decade, Tarana Burke and survivors across the country have used #MeToo to share their experiences of sexual violence, raise women’s voices, and respond to the needs of survivors. In its current incarnation, #MeToo has sparked an unprecedented examination of sexual harassment, including sexual assault, in our workplaces, and illuminated the multiple manifestations of workplace discrimination.

In the midst of this historic reckoning, the ACLU and coalition partners drafted and shared with members of Congress a blueprint— our Principles and Priorities for Legislative Action to Eliminate Workplace Harassment — for addressing the scourge of discrimination in every workplace across the country. We said it was long past time that Congress confront the reality that our current laws had not done enough to stamp out harassment and discrimination, especially for our most vulnerable workers – those in low-wage jobs (who are predominantly women of color), those facing language barriers, and undocumented workers.

Finally, the voices of survivors and advocates reverberate in the halls of Congress this week with the introduction of a comprehensive and visionary piece of legislation: the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act (BE HEARD in the Workplace Act).

This bill strengthens and expands the reach of our nation’s antidiscrimination laws, removes barriers that prevent individuals from accessing justice, and helps employers create harassment-free workplaces—while also holding them accountable when they fall short. Some of the legislation’s key provisions are described below.

It extends civil rights protections to all.

Until now, the prohibition against employment discrimination under Title VII of the Civil Rights Act has only applied to businesses with more than 15 employees; individuals who work alone, or in small workplaces like domestic workers have been virtually unprotected. But this law would extend those protections to all employees regardless of business size, as well as to those who don’t fall under the category of “employee,” including independent contractors, volunteers, interns, fellows, and trainees. The bill also provides LGBTQ workers with protection from employment discrimination.

It gives survivors of sexual harassment a fair chance in court.

For the past 30 years, federal caselaw has required survivors to prove the harassment was “severe or pervasive” to prevail in court, an often unattainable standard that was unrelated to Title VII’s requirement that the conduct alter the terms or conditions of employment. Under this standard, even conduct like a supervisor squeezing an employee’s breast might not be enough to prove harassment. The BE HEARD in the Workplace Act offers a detailed roadmap for judges and employers to follow in identifying what conduct does and does not constitute unlawful harassment. This specificity will give much-needed guidance to the federal courts, which too often have excused objectively abusive conduct in the workplace, depriving victims of harassment of relief, and dissuading other from seeking legal redress.

It limits secrecy and promotes transparency.

Harassment and other forms of discrimination thrive in the shadows and are often perpetuated by agreements workers are forced to sign before taking a job that require discrimination claims to be decided in secret arbitration proceedings rather than in court. The bill would also prohibit employers from demanding that workers sign blanket non-disclosure agreements upon accepting a job.

It restores protections for workers harassed by supervisors.

In 2013 the Supreme Court held that an employee bringing a legal challenge against harassment by her supervisor had to meet a higher burden of proof if the supervisor could not fire, demote, promote, or transfer the employee – even if the supervisor did have the power to control her daily life at work, what duties she performed or the number of hours she was assigned. The bill would fix this incorrect interpretation of Title VII of the Civil Rights Act of 1964 and make it easier for employees to hold employers liable for supervisor harassment.

And it assists employers in creating harassment-free workplaces.

The bill authorizes research and data collection on workplace harassment and provides employers with model policies and trainings, best practices tailored to specific industries, and model workplace climate surveys to expose unreported harassment.

A work life free from harassment, violence, and other forms of discrimination must no longer be out of reach. Our laws can require it, our employers can impose it, our culture can foster it, and every working person can demand it.

The BE HEARD in the Workplace Act moves us closer to that reality. There is a great deal of work ahead, but we are in it for the long haul — starting today.

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