phoneSexual harassment has been a problem in workplaces for a long time, probably as long as the “workplace” has existed. In the popular imagination, the classic sexual harassment scenario involves a male manager or supervisor making unwanted sexual overtures toward a subordinate female employee. Of course, sexual harassment can take many other forms. In a very modern twist on a seemingly timeless problem, “virtual assistants” (VAs) are reportedly experiencing sexual harassment. VAs are artificial intelligence (AI) applications on smartphones and other devices that use voice recognition to answer questions and perform certain tasks. Several software companies are reporting that their VAs receive far more queries of a sexual nature than they were expecting. Some VAs, such as Microsoft’s Cortana, are learning how to push back against such conduct.

In the U.S. legal system, sexual harassment includes offensive conduct ranging from inappropriate sexual comments to overt demands for sexual activity to actions that also constitute criminal sexual assault. These are all considered sex discrimination in violation of federal, state, and city employment statutes. The U.S. Supreme Court first recognized sexual harassment as sex discrimination under Title VII of the Civil Rights Act of 1964 in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Sexual harassment is not limited to scenarios in which men harass women. Women can sexually harass men, and workers can successfully claim sexual harassment by members of the same sex. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

The court identified two types of sexual harassment in Vinson. Quid pro quo sexual harassment involves demands for sexual activity in some form, either in exchange for some employment benefit or under threat of some penalty. Hostile work environment sexual harassment involves inappropriate sexual remarks, overtures, or other conduct that renders the workplace unbearable.

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haircutSexual harassment unfortunately remains a pervasive problem in workplaces all over the country and the world. Different types of workplaces present distinct challenges for employees who simply want to do their jobs free from unwanted sexual overtures and advances. Although many common images of sexual harassment involve inappropriate conduct by a supervisor toward an employee, perpetrators can also include co-workers and customers. Employers have a duty to protect employees once they are aware, or should be aware, that sexual harassment is happening. An article from early 2016 in the online publication Mic discusses sexual harassment against hair salon employees by customers, and it notes how working conditions in hair salons can place the burden on the employee to fight back.

Employment statutes at the federal, state, and city levels do not specifically define “sexual harassment,” but they all treat it as a form of prohibited discrimination on the basis of sex. Courts have found that, in order for sexual harassment in the workplace to be actionable, it must be more than “merely offensive,” but it does not need to be so severe that it “cause[s] a tangible psychological injury.” Harris v. Forklift Systems, 510 U.S. 17, 21 (1993). This is obviously not a precise definition, since it depends on multiple factors that vary from one case to another. As a general rule, however, inappropriate sexual conduct crosses the line into sexual harassment or a hostile work environment when it “would reasonably be perceived, and is perceived, as hostile or abusive.” Id. at 22.

Employers are responsible for providing reasonable safeguards for their employees against sexual harassment by customers. It ought to go without saying that nothing excuses or justifies sexual harassment by a customer, but the Mic article identifies certain features of hair salons that arguably make employees more vulnerable. One hair stylist quoted in the article notes that she works in “one of the few non-sexual professions that have to touch their clients.” Another stated that “salons can be boundary-less environments riddled with dysfunction.” No matter what the specific interpersonal dynamics are within a particular salon, the duty to protect workers remains the same.

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monkey and catsAttorneys for Phillips & Associates have obtained a victory before the Second Circuit Court of Appeals in a case of first impression claiming sexual harassment and retaliation. Vasquez v. Empress Ambulance Service, Inc., No. 15-3239-cv, slip op. (2d. Cir., Aug. 29, 2016). The plaintiff’s employer had no discriminatory intent, per se, but relied on false information provided by the plaintiff’s co-worker and harasser. In ruling for the plaintiff, the appellate court imputed the co-worker’s discriminatory intent to the employer. This type of situation, in which a low-level employee’s ill intent determines an employer’s actions, is sometimes known as the “cat’s paw” theory.

The term “cat’s paw” comes from “The Monkey and the Cat,” a fable credited to Aesop and later written as a poem by the 17th-century French poet Jean de La Fontaine. A monkey and a cat both notice some chestnuts roasting in the ashes of a fireplace. Some versions of the fable say that both animals are “thievish,” while La Fontaine’s poem only attributes this quality to the monkey. The monkey convinces the cat to use his (or her) claws to pull the chestnuts out of the ashes, offering to split the bounty 50/50. The cat burns his paws while retrieving the chestnuts and does not realize that the monkey is eating them as soon as they come out of the fire. A “cat’s paw” is therefore someone who is misled into doing someone else’s dirty work.

The U.S. Supreme Court endorsed the “cat’s paw” theory in an employment setting in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). That case involved a claim under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq., which prohibits employment discrimination on the basis of military service. The defendant employer terminated the plaintiff, a U.S. Army Reserve member, with no apparent animus toward military servicemembers. The plaintiff demonstrated, however, that his direct supervisors “were hostile to [his] military obligations.” Staub, 131 S. Ct. at 1189. The Supreme Court found that the plaintiff’s military service was a motivating factor in the decision to fire him because of his supervisors’ ongoing efforts to undermine him.

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batteryPregnancy discrimination perhaps most commonly involves adverse employment actions directly related to an employee’s pregnancy or recent childbirth, such as refusing to hire a pregnant job applicant or terminating or demoting an employee who becomes pregnant. In some cases, however, actions, policies, or practices intended to benefit or protect pregnant workers or job seekers actually constitute unlawful pregnancy discrimination. For example, policies intended to protect pregnant women and their unborn children, known as “fetal protection policies” (FPPs), may violate Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) of 1978, if they have the effect of creating disparate treatment based on gender. See United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991). Discrimination claims involving FPPs are now rare compared to other types of cases, but they remain an important part of the legal landscape of workplace pregnancy rights.

Many private-sector employers began enacting FPPs in the 1970s and 1980s, as the number of women in the workforce increased. These types of policies were common for jobs that involved the use of, or the risk of exposure to, chemicals that could potentially be harmful to a fetus. At a minimum, FPPs excluded pregnant women from working in positions that posed such a risk. Many FPPs went further than that, excluding all women considered to be of childbearing age, regardless of whether they had any plans to become pregnant.

The Supreme Court’s decision in Johnson Controls held that an FPP barring all “fertile female employee[s]” from certain positions violated Title VII and the PDA. Johnson Controls, 499 U.S. at 190. The defendant operated a battery manufacturing business. Lead is a primary component in the manufacturing process but is also considered a significant health risk for fetuses.

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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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