Wall StreetWomen have made tremendous progress in the past four or five decades in the workplace, overcoming obstacles that had been in place for centuries, if not longer. Many hurdles remain, though, and some workplaces present far greater challenges than others. Wall Street is still, in many ways, a “boys’ club,” where women might not be expressly excluded but are also not always welcomed by the office culture. Twenty years ago, a group of women at a Wall Street financial company filed a lawsuit alleging sex discrimination, sexual harassment, and retaliation. Martens v. Smith Barney, Inc., No. 96-cv-03779, complaint (S.D.N.Y., May 20, 1996). The number of claimants grew to almost two thousand, and the defendant eventually paid out $150 million. The lawsuit brought some reforms to Wall Street’s culture, but sex discrimination in many forms remains a problem.

Sex discrimination in the workplace is prohibited under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2; the New York State Human Rights Law (NYSHRL), N.Y. Exec. L. § 296; and the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-107. The U.S. Supreme Court established sexual harassment as a form of unlawful sex discrimination in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Subsequent cases have established the right to bring sexual harassment claims as a collective or class action. See, e.g. Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1304 (8th Cir. 1997) (“It should be obvious that the callous pattern and practice of sexual harassment…inevitably destroyed the self-esteem of the working women exposed to it.”)

The initial group of women who filed suit in Martens alleged multiple forms of sex discrimination that “transcend[ed] all aspects of employment.” Martens, complaint at 5. This included an applicant pool for brokers that favored men and “deliberately steer[ed] female applicants into the position of sales assistant,” which featured “duties…stereotypically assigned to women.” Id. at 6.

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Congress speechIn New York City, employees enjoy protection from a wide range of unlawful employment practices, including sexual harassment, under federal, state, and city laws. The City Council recently amended the New York City Human Rights Law (NYCHRL) to include unpaid interns under the law’s definition of a protected “employee.” Unfortunately, other anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 and most state laws, do not apply to unpaid interns. A series of bills currently pending in the U.S. Congress would add unpaid interns to several federal statutes dealing with sexual harassment and sex discrimination. The House of Representatives has passed one of these bills, but the Senate has taken no action. With the legislative session ending in a few months, it is unlikely that these particular bills will pass, but they offer a useful guide for actions the next Congress should take.

Courts have generally held that Title VII does not apply to unpaid interns, meaning that they cannot assert claims for sexual harassment under that statute. See O’Connor v. Davis, 126 F.3d 112 (2d Cir. 1997). This lack of legal protection at the federal level is not limited to issues of discrimination and harassment. The Second Circuit Court of Appeals has also cast doubt on whether unpaid interns are considered employees for the purpose of wage and overtime claims under the Fair Labor Standards Act (FLSA). Glatt v. Fox Searchlight Pictures, Inc., 791 F.3d 376 (2d Cir. 2015).

In 2013, a New York City federal court dismissed a sexual harassment lawsuit brought under the NYCHRL, ruling that this statute also did not apply to unpaid interns. Wang v. Phoenix Satellite Television US, Inc., 976 F.Supp.2d 527 (S.D.N.Y. 2013). In response, the New York City Council amended the law to include unpaid interns. The amended NYCHRL defines an “intern” as someone working for “a fixed period of time” with no subsequent “expectation of employment,” who does not receive wages for their work, who performs the work as part of an educational program or in order to gain experience and training, who “does not displace regular employees,” and who works “under the close supervision of existing staff.” N.Y.C. Admin. Code § 8-102(28).

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snakeSexual harassment is recognized as a form of unlawful sexual harassment throughout the United States. Despite advances in employees’ ability to fight back against unwanted sexual remarks and advances, it remains a pervasive problem in just about every profession and industry. A recent report in the Washington Post highlights the difficulties faced by many female medical students as they go through the rigorous training required to become doctors. Federal law protects people from sex discrimination and sexual harassment in both the workplace and places of education. The standard medical school curriculum combines both of these, since medical students move from classroom instruction toward practical training in hospitals and clinics. This issue also highlights a difficult situation for unpaid interns, who have no specific protection from sexual harassment under federal law. Some cities, including New York, have enacted laws covering unpaid interns.

In New York City, federal, state, and city laws prohibit workplace sexual harassment. These statutes include Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the New York State Human Rights Law (NYSHRL), N.Y. Exec. L. § 290 et seq.; and the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq. Prohibitions in sex discrimination in education under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., also apply to sexual harassment in academic settings.

On-the-job training is a critical part of medical education. This can blur the line between the workplace and the classroom for medical students, who must perform internships as part of their degree program. Some, but not all, internships qualify as “employment.” Title VII does not necessarily cover unpaid interns, since they do not meet the statute’s definition of employment. See O’Connor v. Davis, 126 F.3d 112 (2d Cir. 1997). A federal court held in 2013 that the NYCHRL similarly does not extend its protections to unpaid interns. Wang v. Phoenix Satellite Television US, Inc., 976 F.Supp.2d 527 (S.D.N.Y 2013). In response to the Wang ruling, the New York City Council amended the NYCHRL to include coverage for unpaid interns in education-related programs. N.Y.C. Admin. Code § 8-102(28).

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Iranian womanSexual harassment is a problem in workplaces all over the world, and while we should celebrate the progress made in this country in the past few decades, it is important also to note progress in other parts of the world. In early 2016, a female anchor at Press TV, Iran’s state-run, English-language news channel, released audio recordings of the channel’s news editor sexually harassing her. The ensuing scandal quickly resulted in the suspension of two executives, but it unfortunately also led to the anchor fleeing the country. A high-level media executive later resigned, and the Iranian president reportedly announced an effort to crack down on sex discrimination in the government. The Iranian legal system, according to numerous sources, heavily favors men over women in many aspects of society. While the long-term impact of the anchor’s case remains to be seen, it has at least produced a few hopeful signs.

Title VII of the Civil Rights Act of 1964 prohibits various forms of discrimination in the workplace, including discrimination on the basis of sex. At just over 50 years old, Title VII is still relatively new to America’s legal system. Sexual harassment did not acquire formal legal recognition as a form of unlawful sex discrimination for another 22 years, when the Supreme Court issued its decision in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). State laws and laws in some cities, such as the New York State Human Rights Law and the New York City Human Rights Law, also protect workers against sexual harassment and sex discrimination. Despite all these legal protections, and a growing public dialogue about how to prevent sexual harassment from occurring, it remains an ongoing problem across the country.

As a general rule, U.S. statutes only apply on U.S. territory. According to the Equal Employment Opportunity Commission, however, Title VII applies to U.S. citizens in a foreign country who work for a U.S.-based employer. A U.S. employer in a foreign country is not bound by Title VII, however, if compliance would violate a law in that country. See 42 U.S.C. § 2000e-1(b). Many countries have statutes that provide comparable or greater protections against sexual harassment, but the laws of some countries essentially establish sex discrimination, rather than fight against it. Sometimes, laws that appear to offer strong protections against sex discrimination actually offer few or none, due to a lack of enforcement.

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ApplicationCities around the country are enacting “Ban the Box” (BTB) laws with the aim of helping people with criminal histories reenter the workforce without undue difficulty. The “box” in the law’s name refers to the check box on a typical job application asking if an applicant has any criminal history. Employers routinely dismiss any application with that box checked. While BTB laws most certainly have the best intentions, at least one study has identified a possible unintended side effect in relation to race discrimination. A “field experiment” conducted by researchers at Princeton University and the University of Michigan found a possible increase in racial bias after the enactment of BTB laws. This one study should not be interpreted as a refutation of BTB laws’ purpose or effectiveness. For one thing, they display a correlation without necessarily establishing causation. The study’s findings are still important to understanding the overall issue.

Most BTB laws, including the law in New York City, prohibit employers from advertising job openings in a way that excludes people with records of arrests or convictions. See N.Y. Admin. Code § 8-107(11-a)(a)(1). An employer may not inquire about criminal history until it has “extended a conditional offer of employment to the applicant.” Id. at § 8-107(11-a)(a)(2). If the employer takes an adverse action, such as withdrawing the conditional offer of employment, it must provide the applicant with written notice and give the applicant up to three days to respond. Id. at § 8-107(11-a)(b); N.Y. Corr. L. § 750 et seq. A violation of these provisions is deemed an “unlawful discriminatory practice” under New York City Law. See N.Y.C. Admin. Code §§ 8-107(9), (10); N.Y. Exec. L. § 296(16).

The study, entitled “Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment,” was published by the University of Michigan’s Law and Economics Research Papers Series in June 2016. The abstract states that, while BTB laws might reduce immediate discrimination on the basis of criminal history, this “could risk encouraging statistical discrimination” if “employers may make assumptions about criminality based on the applicant’s race.”

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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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