GymnasticsOnce every four years, the country’s best athletes compete against their counterparts from the rest of the world in the Summer Olympic Games. The 2016 games, which concluded on Sunday, August 21, were held in Rio de Janeiro, Brazil. The U.S. brought home 121 medals, the most of any country, including 12 medals in gymnastics. As the U.S. gymnasts were preparing for their winning performance in Brazil, however, an investigation suggested that the national governing body for gymnastics, USA Gymnastics, Inc., had failed to act on multiple reports of alleged sexual abuse by coaches. This has led to at least one lawsuit alleging negligent hiring, training, supervision, and retention, as well as general negligence and various intentional torts. Doe v. USA Gymnastics, Inc., et al., No. ST13CV058RT, complaint (Ga. St. Ct., Effingham Co., Apr. 15, 2013).

Anti-discrimination statutes at the state and federal levels hold an employer liable for certain forms of harassment or abuse in the workplace if they knew about the issue but failed to take reasonable actions to remedy it. A similar principle of liability applies to tort claims like the ones made in the Doe case. The plaintiff alleged in their complaint that USA Gymnastics knew about the abuse of gymnasts by certain coaches but failed to do anything about it. The organization, according to the plaintiff, should therefore be liable for damages resulting from this abuse.

USA Gymnastics is a nonprofit organization that oversees competitive gymnastics at the national and international levels, subject to the rules and regulations of the International Gymnastics Federation and the U.S. Olympic Committee. Its most well-known role involves the selection of gymnasts to send to the Summer Olympic Games every four years, along with other international competitions. The U.S. women’s gymnastics team has been particularly successful in recent games. They won the team gold medal for overall performance in Rio this year and in London in 2012, as well as the team silver medal in Beijing in 2008 and in Athens in 2004.

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restroomFederal, state, and city laws in New York City protect workers from discrimination in employment on the basis of pregnancy and childbirth. This not only includes firing an employee because they become pregnant, or refusing to hire a pregnant job applicant for that reason, but also includes disparate treatment affecting one or more pregnant employees. A jury recently ruled in favor of a plaintiff claiming pregnancy discrimination largely due to disparate treatment. Garcia Hernandez v. Chipotle Mexican Grill, Inc., No. 1:14-cv-00297, complaint (D.D.C., Feb. 24, 2014). The jury awarded her compensatory and punitive damages totaling $550,000.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sex, race, color, religion, or national origin. The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII to make pregnancy discrimination—defined to include “pregnancy, childbirth, or related medical conditions”—a type of unlawful sex discrimination. 42 U.S.C. §§ 2000e(k), 2000e-2(a).

The PDA’s protections apply to adverse actions based on a protected category and to acts that “limit, segregate, or classify” those employees in a way that negatively affects their employment or employment opportunities. Id. at § 2000e-2(a)(2). This includes a situation in which an employer takes actions that interfere with a pregnant employee’s ability to do their job effectively. This was the scenario alleged by the plaintiff in Garcia Hernandez.

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flirtationFederal, state, and city laws in New York City protect workers against discrimination in employment on the basis of sex. A recent ruling from a New York County Supreme Court, however, held that a situation that might appear like sex discrimination, as well as a prelude to sexual harassment, is not actionable under New York state or city law. Edwards v. Nicolai, et al., No. 160830/2013, decision/order (N.Y. Sup. Ct., N.Y. Co., May 13, 2016). The plaintiff filed suit after her employer allegedly fired her for being “too cute.” Id. at 2. The defendant employers are husband and wife, and the plaintiff alleges that the wife fired her “out of the blue” after telling her to “stay…away from [her] husband.” Id. The plaintiff stated that she had no inappropriate interactions whatsoever with the husband. The court primarily relied on out-of-state decisions.

The New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) prohibit sex discrimination in employment. Courts across the country have held that sexual harassment is a form of unlawful sex discrimination. The situation presented in the Edwards case apparently did not involve sexual harassment or any harassment of any sort until the defendants fired the plaintiff. The defendants allegedly concluded that the plaintiff’s presence in the workplace created an unacceptable risk of sexual impropriety.

An Iowa Supreme Court decision, Nelson v. Knight, 834 N.W.2d 64 (Iowa 2013), addressed an almost identical question. The court held that it did not constitute unlawful sex discrimination under state law for an employer to fire “a long-time female employee” solely “because the employer’s wife, due to no fault of the employee, is concerned about the nature of [their] relationship.” Id. at 65.

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credit reportNew York City law provides some of the most comprehensive protections against employment discrimination based on criminal history. No comparable protections exist under federal law, although the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., provides similar protections with regard to consumer credit information. Credit reports obtained by employers during the hiring process may include information regarding criminal history. A putative class action in federal court in New Jersey alleges that a major ridesharing company violated the FCRA by failing to disclose information found in drivers’ credit reports prior to taking adverse actions against the plaintiffs. Cuccinello, et al. v. Uber, Inc., et al., No. 2:15-cv-06604, am. Complaint (D.N.J., Dec. 7, 2015). The lawsuit also names the credit reporting agency (CRA) that issued the credit reports as a defendant.

The New York City Human Rights Law (NYCHRL) does not allow employers to inquire about criminal history until they have extended a conditional offer of employment to a specific applicant. If an employer makes an adverse decision after this point, it must notify the applicant of the reasons for this determination and give the applicant an opportunity to respond. This is similar to provisions of the FCRA relating to the use of credit reports for employment purposes.

The FCRA requires an employer to get a applicant’s written authorization to obtain a credit report, and to provide the applicant with “a clear and conspicuous disclosure,” in writing, stating that the information contained in the credit report may affect the employer’s hiring decisions. 15 U.S.C. § 1681b(b)(2)(A). Before a CRA may issue a report to an employer, the employer must certify that it has followed these requirements. Id. at § 1681b(b)(1)(A). If the employer bases an adverse action or decision on information contained in the applicant’s credit report, it must provide the applicant with a copy of the report and a notice of their rights under the FCRA. 15 U.S.C. §§ 1681b(b)(3)(A), 1681g(c).

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criminal-1054067_640Discrimination in hiring on the basis of a criminal record, including not only convictions but also arrests and charges, is a serious problem for millions of people in this country. Many cities and states have enacted laws protecting workers with criminal convictions from many forms of discrimination. Recent amendments to the New York City Human Rights Law (NYCHRL) offer some of the strongest protections in the country. The law includes an exception, however, for situations when other local, state, or federal laws specifically disqualify people with criminal records from certain types of employment. New York State has more than 1,000 such laws.

The NYCHRL generally prohibits employment discrimination based on criminal conviction history, using procedures established by state law. N.Y.C. Admin. Code § 8-107(10), N.Y. Corr. L. § 750 et seq. Under the New York State Corrections Law, an employer cannot refuse to hire someone or take other adverse employment actions against them based solely on criminal history, except in two situations:  if a “direct connection” exists between the criminal history and the specific job in question, or if the employer reasonably believes that employing the person would pose an “an unreasonable risk” to certain people, the general public, or private property. N.Y. Corr. L. § 752.

An employer that denies someone a job on one or more of the grounds stated in the Corrections Law must provide written notice to that person. The NYCHRL also prohibits employers from advertising job openings as only being open to people without criminal records. N.Y.C. Admin. Code § 8-107(11-a).

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HippocratesEthical prohibitions on sexual contact between medical doctors and their patients go back at least as far as the 2,500-year-old Hippocratic Oath, and probably much farther. Despite such a long history, inappropriate sexual conduct by doctors toward patients, ranging from sexual harassment to sexual assault, is still a substantial problem today. Laws at the federal and state levels, along with those in many cities, protect employees against sexual harassment and other misconduct in the workplace, but no statute specifically addresses this issue in the doctor-patient relationship. A patient seeking to hold a medical professional civilly liable for sexual abuse must turn to the common law. A lawsuit currently pending against a Manhattan doctor illustrates these types of claims. Newman v. Mt. Sinai Med. Ctr., Inc., et. al, No. 151392/2016, am. complaint (N.Y. Sup. Ct., N.Y. Cty., Feb. 23, 2016).

Several tort claims under New York common law can enable a patient to hold a medical doctor liable for sexual abuse. Intentional torts like assault, battery, and intentional infliction of emotional distress (IIED) may apply to situations in which a doctor abuses their position and engages in inappropriate sexual behavior or contact. Each of these requires proof that the defendant intentionally engaged in the conduct that led to the plaintiff’s injury, which does not necessarily have to involve physical injury. Some intentional tort claims also require proof that the defendant intended to cause an injury.

Tort claims based on negligence require a plaintiff to prove four key elements:  (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) this breach was the cause-in-fact of the plaintiff’s injuries; and (4) the plaintiff suffered actual, quantifiable damages as a result. The term “medical malpractice” refers to negligence claims involving doctors and other medical professionals who breached a professional duty of care. This type of claim could apply in a situation involving sexual abuse by a doctor if it had a direct and adverse impact on the plaintiff’s care. The tort of negligent infliction of emotional distress (NIED) is often difficult to prove but is also a possibility in such cases.

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doctorSexual harassment is not limited to employer/employee relationships and interactions between co-workers. A recent report in the Atlanta Journal-Constitution (“AJC”) looks into allegations of sexual misconduct by doctors against patients and finds that it is a pervasive problem. Employment statutes, such as Title VII of the Civil Rights Act of 1964, treat sexual harassment in the workplace as a form of unlawful sex discrimination, but these laws do not apply to the doctor/patient relationship. Doctors are bound by ethical rules enforced by state medical boards, whose authority includes license suspension and termination. The AJC’s report, however, finds that a significant number of doctors have retained their licenses even after multiple complaints. In the court system, patients may be able to seek relief through certain tort claims.

A patient may be able to assert a civil claim against a doctor for assault and battery. Although these two terms are often used interchangeably, there is an important distinction between them in civil tort cases. “Assault” generally involves a threat delivered with the intent to place a person in reasonable fear of imminent injury or other harm. A plaintiff does not have to prove physical harm, or even physical contact, if they can establish by a preponderance of the evidence that the defendant intended to place them in fear of such harm. This often requires proof of some overt action by the defendant, such as moving toward the plaintiff in a way that a reasonable person would interpret as an imminent threat. An attempt by a doctor to commit sexual assault against a patient could support a civil assault claim.

The tort of “battery” requires proof of physical contact that caused injury or offense. This does not necessarily mean physical injury. In cases of sexual assault by a doctor against a patient, the offense caused by non-consensual sexual contact should support a battery claim.

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Convict SurgeonfishCriminal history can be a major stumbling block during a job search. Laws at the state and city levels around the country protect job seekers from employment discrimination based on criminal history during the initial stages of the application process. New York City goes even further in restricting the extent to which employers may use criminal history as a factor in hiring decisions. New research about employees with criminal records appears to affirm the validity of these laws and the principles behind them.

“Ban the Box” (BTB) laws prohibit employers from asking about criminal history early in the job application process. The “box” refers to the check box on a typical job application form asking whether an applicant has ever been arrested, been charged with an offense, pleaded guilty or no contest, or been convicted in a court of law. Employers also may not inquire about criminal history during an initial interview. The point in the application process when employers may ask about criminal history varies from one BTB law to another, but it never occurs during the first stage.

New York City’s Fair Chance Act goes further than most other BTB laws. It states that employers may not discriminate against an employee or job applicant because of that person “having been convicted of one or more criminal offenses,” or because a conviction history resulted in “a finding of a lack of ‘good moral character.’” N.Y.C. Admin. Code § 8-107(10)(a). An employer can take conviction history into account once it has made a conditional offer of employment, but if it makes an adverse finding based on that history, it must notify the applicant or employee and give them an opportunity to respond. Id. at §§ 8-107(10)(c), (11-a)(b); see also N.Y. Corr. L. § 750 et seq.

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Playboy MansionThe employment statutes that protect workers from sexual harassment and other unlawful workplace practices generally hold employers liable for the actions of individual managers, supervisors, and employees. It is also possible to assert a claim against an individual who was directly involved in harassment, or who encouraged or supported such behavior. A currently pending federal lawsuit, which involves several well-known media figures, alleges conspiracy against one defendant. The plaintiff claims that this defendant knew that the other defendant intended to assault her and that he helped facilitate it. Goins v. Cosby, et al., No. 2:16-cv-03523, am. complaint (C.D. Cal., Jun. 15, 2016). While the case does not involve an employment relationship, it offers an idea of claims that might be possible.

Employment statutes like the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) provide remedies for people who have experienced sexual harassment and other types of harassment at work. In particularly egregious cases of alleged sexual harassment, a person may also want to assert common-law tort claims, such as assault, battery, or intentional infliction of emotional distress (IIED).

Although sexual harassment is often portrayed as merely the actions of certain oafish individuals, this type of behavior does not appear out of nowhere. Many statutes allow a complainant to assert claims against people who did not directly engage in sexual harassment, if they somehow enabled such behavior. This includes claims for aiding and abetting unlawful employment practices, or attempts to do so, under both the NYSHRL and the NYCHRL. N.Y. Exec. L. § 296(6), N.Y.C. Admin. Law § 8-107(6).

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New York taxiThe New York City Taxi & Limousine Commission (TLC) proposed regulations in early 2016 that would address sexual harassment by drivers, including taxi drivers and drivers for ride-sharing companies like Uber. The issue of alleged sexual harassment by drivers, as well as multiple incidents of alleged sexual assault, has drawn attention to the safeguards, or the lack thereof, in place for passengers. Several areas of law intersect here. First, there is the duty of a service provider, such as a taxi company, to provide reasonable protections for its customers, in this case the passengers. Then, there is the multifaceted question of whether drivers for companies like Uber are employees or independent contractors, and the extent to which employment laws protect them. New York City might not play a role in resolving these questions very soon, however, since the TLC withdrew the proposed sexual harassment regulations shortly before a scheduled vote in April.

The TLC’s proposed regulations are similar in several ways to city, state, and federal laws regarding sexual harassment. An employee can assert a claim for sexual harassment based on specific actions or demands by a supervisor, manager, or other person in a position to affect the conditions of their employment, or they can claim a pattern or practice of sexual harassment that creates a hostile work environment. Employers are generally required to take reasonable precautions to maintain a safe work environment, and they are specifically required to act to remedy a situation upon receipt of a hostile work environment complaint from an employee.

The number of reported cases of alleged incidents of sexual harassment or assault by drivers, which is at least somewhere in the thousands, vastly exceeds the number of reported cases by passengers, for which little if any data appears to be available. The right of drivers to be reasonably secure in their place of employment is still a right worth considering when discussing their employment status under the law. Drivers for various taxi or ride-sharing companies are not necessarily protected by sexual harassment laws, since their status as “employees” remains in dispute. An employer’s duty to provide a reasonably safe environment for its employees includes harassment by customers as well as supervisors and co-workers.

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