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The US presidential election campaign has created a national dialogue about what it takes to create a hostile work environment and could change judges’ perspectives on the issue, writes trial lawyer Reuben Guttman.

Title VII of the 1964 Civil Rights Act generally proscribes employment discrimination based on an individual’s “race, color, religion, sex, or national origin.” The breadth of the law’s proscriptions, the burdens of proof and the facts needed to prove a violation have, over the years, been the subject of much litigation.

Twenty two years after Title VII’s passage, the United States Supreme Court issued its opinion in Meritor Savings v. Vinson, 477 US 57 (1986). In Meritor, the Court established a cause of action under Title VII for gender discrimination where an employee has been subject to a “hostile work environment.” In issuing its Opinion, the Court quoted the decision of the United States Court of Appeals in Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982):“Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality in the workplace that racial harassment is to racial equality. Surely, a requirement that a man or a woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.” In Meritor, the Court noted that the alleged conduct was “not only pervasive but also criminal conduct of the most serious nature.”

While Meritor established the doctrine of “hostile work environment,” it failed to establish a bright line test for liability and even today’s guidance by the Equal Employment Opportunity Commission – the Agency charged with enforcing Title VII – is ambiguous. The guidance states that “petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.” The guidance also says that “to be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.”

If this guidance is ambiguous, think about its application when juxtaposed against the pleading standards established by the Supreme Court in Bell Atlantic v. Twombly, 550 US 554 (2007) and Ashcroft v. Iqbal, 556 US 662 (2009). Those cases allow a trial court judge to look at the facts and determine whether a claim is “plausible.” In Iqbal, the Court explained that in determining plausibility, the “reviewing court” may draw upon its “judicial experience” and “common sense.” The Court also explained that “the plausibility standard is not akin to a “probability standard,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Common sense? The plausibility standard is subjective and undoubtedly may be influenced by a judge’s experiences and personal environment. And yet, as subjective as the standard is, it is the standard that allows judge’s to be the gatekeepers for the procession of claims of discrimination to proceed to discovery and perhaps trial.

Over the past several weeks neither the courts not Congress have issued an opinion or passed any law changing the way hostile work environment cases are viewed. Yet, it may be that events outside of the court room and the legislative arena have changed forever our perspective on these claims and perhaps – maybe perhaps – provided judges with a new perspective when evaluating the “plausibility” of a claim.

The release of a tape of presidential candidate Donald Trump extolling his sexual exploits, a dialogue about this same subject during a Presidential debate watched by 80 million people and news reports of women who were allegedly groped or kissed by Mr Trump has led to a national dialogue about sexual harassment. Weighing in on the subject, First Lady Michelle Obama captured the attention of the nation when she told New Hampshire voters: “And I have to tell you that I can’t stop thinking about this. It has shaken me to my core in a way that I couldn’t have predicted.”
Whether each allegation is true, the 2016 election will go down to the wire with a national dialogue about how much – or rather how little – it takes to poison an environment with hostile language or unwanted contact. It is a dialogue tantamount to an education campaign given by alleged victims, commentators and advocacy group leaders. For those judges who are tuned into their TV sets, perhaps their perspective on the plausibility of a claim of hostile work environment will forever be changed.

Reuben Guttman is a trial lawyer and one of the founding partners at Washington, DC-based firm Guttman, Buschner & Brooks PLLC.

Trial lawyer Reuben Guttman questions how America’s attorney generals and the political organisations with which they associate raise funds.

Sometimes the press has a way of seeing the tip of the iceberg without enquiring into the breadth and depth of the whole mass. Such is the case with Pam Bondi, Florida’s attorney general. Amidst her purported investigation of Trump University, she took a $25,000 campaign contribution from Donald Trump’s Foundation. On the face of it, the payment violated federal law because charitable foundations cannot use their money for political campaign contributions. To make matters worse, while the New York State attorney general embarked on litigation against Trump University, Bondi chose not to jump into the fray. While it does not look good, this is perhaps the tip of the iceberg. So what’s underneath the tip?

Compliance enforcement at the state level is either for sale or has the appearance of being for sale. And as lawyers are taught in law school, even the appearance of impropriety has the capacity to impact confidence in the rule of law.

State attorney generals control the enforcement spigot. They make threshold decisions about whether to enforce a law, whether a set of facts even constitutes a violation, and whether enforcement should be privatised through retention of outside law firms.

Given their roles in making critical decisions about law enforcement, one would think that efforts would be taken to ensure that attorney general decision making is not tainted by the appearance of impropriety. Curiously, rather than steer clear of that appearance, attorney generals have institutionalised it through creation of the Republican Attorney Generals Association (RAGA) and the Democratic Attorney Generals Association (DAGA). These organisations – the officers of which are elected attorney generals – raise funds from some of the very individuals and corporations who are within the orbit of the attorney general enforcement authority.

Through various functions, RAGA and DAGA arrange settings for regulators to mingle with the regulated. This year, RAGA has events scheduled at the Broadmoor Resort in Colorado, a retreat at Pebble Beach, California and a meeting at Omni Barton Creek in Austin, Texas.  Meanwhile DAGA will be holding a reception and dinner at the Four Seasons Hotel in Washington, DC, a 2017 winter conference in Fort Lauderdale and a spring 2017 conference at the Nines Hotel in Portland, Oregon.

A glance at information gathered by the Center for Responsive Politics provides insight into DAGA’s funders and a hint at with whom the Democratic AG’s mingle. Funders range from large pharmaceutical companies – some of which have been the target of investigations and compliance enforcement – to a range of law firms, some of which have represented state agencies and even the offices of attorney generals.

A 2014 membership benefits breakdown by RAGA, disclosed by the New York Times, lists benefits accorded to those whose annual contribution is $125,000. Members of the “Edmund Randolph Club” get a “quarterly call with a featured attorney general,” the “opportunity to submit issue briefing topics and to be a panellist at a RAGA National Meeting,” and “Access to the annual RAGA (2014) retreat in San Diego.” For the record, Edmund Randolph was the first attorney general of the United States.

For its part, the DAGA website makes no bones about selling access to the offices of the attorney general the website claims to be the “second most powerful in state government.” The website states that as a supporter of DAGA, you will enjoy a list of benefits including “Issue conferences,” “AG roundtables,” “political updates,” and a “Democratic AG Directory” where “DAGA members receive a comprehensive directory of all Democratic Attorney Generals and their key staff and office contacts.” The description of the AG Roundtables makes clear that they are designed to “provide a unique opportunity for focused conversation with specific AG’s in small settings.”

The RAGA website is clear about its mission: to get Republicans elected as attorney generals. This year RAGA has focused its efforts on the race for North Carolina’s attorney general. Rather than merely promoting the qualifications of the Republican candidate, RAGA has gone one step further and launched a website dedicated to the Democratic candidate, Josh Stein. The site is called ExtremeHarvardRadical.com.  This so-called “extreme radical” is a North Carolina state senator who spent seven years as senior deputy attorney general of North Carolina and was honoured by both Mothers Against Drunk Driving and the American Association of Retired Persons. Yes, Stein is guilty of securing degrees from Harvard Law School and Harvard’s Kennedy School of Government. His campaign website also discloses that he is Jewish and that he and his wife belong to a Synagogue, which makes one wonder if calling him a “Harvard radical” is a dog whistle for something else?

The DAGA site has a more vanilla message about elections: there are 27 Republican AG’s and 24 Democratic AG’s with key races in nine states this year, including North Carolina.

Placed in context, here is a message for those nine new AG’s: Maybe you should make a clean break from accepting campaign funding from those whom you regulate? And maybe membership in DAGA or RAGA is not something to brag about?

And what about Pam Bondi?  It turns out that she is the immediate past chair of RAGA’s Executive Committee.

Reuben Guttman is a trial lawyer and founding partner at Guttman, Buschner & Brooks.