New York Employment Attorney Blog

Almost three years ago, the #MeToo movement began widespread exposure of sexual harassment in the entertainment industry. This expanded to include nearly every other industry in the country, but much of the focus has remained on the film and television businesses. New York City sexual harassment attorneys have extensive experience representing clients in claims for sexual harassment on Wall Street, in television and theater productions, and elsewhere. In the summer of 2020, sexual harassment in the video game industry began to gain greater attention. This could partly be because of the COVID-19 pandemic — as more people stay at home to prevent the spread of the disease, many of them have turned to video games. This has directed more attention not only to the game development companies, but also the competitive side of gaming, commonly known as “esports,” and livestreams hosted by gamers. A June 2020 New York Times report describes widespread allegations of sexual harassment in these parts of the industry.

Most laws that directly address sexual harassment apply specifically to workplaces and employment relationships. Under these laws, sexual harassment is considered to be unlawful discrimination on the basis of sex or gender. This often involves harassment by a supervisor or manager. It could also involve one or more coworkers, clients, customers, or other individuals in situations where the employer knows about the harassment, but fails to act.

As we know from #MeToo, sexual harassment can occur in situations where no direct employment relationship exists. The now-archetypal example, of course, is that of the film producer who demands sexual activity from someone with the accompanying threat — express or implied — to their career prospects if they say no. In those situations, other laws may support a legal claim for sexual harassment, aiding and abetting sexual harassment, or failing to intervene to prevent sexual harassment. This might include claims for negligence or intentional torts, as well as claims based on breach of contract.

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A lawsuit first filed in 2018 makes a series of explosive allegations against a financial firm. New York City sexual harassment attorneys are quite familiar with how the office culture of Wall Street can enable sexual harassment. This lawsuit does not allege an office-wide pattern of inappropriate behavior, but rather multiple acts of coercion against the plaintiff under threat to her job. In the summer of 2020, a Manhattan state court dealt the plaintiff a setback by dismissing several claims and striking her demand for punitive damages. Her cause of action for sexual harassment remains, though, and may proceed to trial.

Sexual harassment constitutes unlawful sex discrimination in two general categories: quid pro quo sexual harassment and hostile work environment. The allegations in the present lawsuit could be a textbook case of quid pro quo sexual harassment, which occurs when an employee is expected to submit to the sexual demands of a supervisor or manager as a condition of employment. The demands could be for almost any activity that is unwelcome and related to sex in some way. The threat associated with rejecting the demand could be overt or implied. A supervisor could, for example, demand sexual activity from a job applicant in exchange for a job, or could give preferable work assignments to employees who provide sexual favors in some form.

The plaintiff worked for the defendant employer, a hedge fund, as a portfolio manager and director of a strategy group. She describes herself as “an esteemed leader in the financial service industry” in her complaint, and describes her specialized experience in “distressed investing.” In 2015, the defendant who would become the plaintiff’s supervisor allegedly approached her about creating a new distressed fund for the employer, and she agreed. The plaintiff and the supervisor had dated briefly in the 1990’s, but they disclosed this to the defendant. She claims that the CEO, also named as a defendant, told the supervisor to “keep [his] hands off of her.”

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The former Hollywood producer whose decades-long pattern of sexual harassment launched the #MeToo movement has faced multiple lawsuits alleging employment discrimination, intentional torts like assault and battery, and other claims. He is now the subject of several more lawsuits filed in New York state and federal courts in recent months. The plaintiffs in these lawsuits assert tort claims arising from the former producer’s alleged actions, and his production company’s alleged lack of action to prevent them. They are not asserting claims under employment statutes like the New York State Human Rights Law, because in most cases they were not employees, and were not seeking to become employees of his production company. Instead, they were aspiring actresses. This highlights how, while New York sexual harassment laws cannot always protect people in certain situations, other forms of relief are available.

Sexual harassment is considered unlawful sex discrimination when an employee or job applicant is expected to acquiesce to sexual demands in order to get a job, secure favorable assignments or perks, or avoid termination. This is known as quid pro quo sexual harassment. An example in the employment context might involve a restaurant or retail manager who gives the best shift assignments to employees who meet the manager’s sexual demands.

In the entertainment business, this practice is sometimes known as the “casting couch,” in which a producer or director expects sexual activity in exchange for getting cast in a particular role. This is often accompanied by a threat, express or implied, that rejecting the sexual advances will have negative effects on their career. Since actors and actresses who are cast in movies are usually not employees of the production company, they might not have a claim for relief under employment discrimination laws. They could, however, assert claims under tort law.

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Sexual harassment occurs in all kinds of workplaces all over the country and the world. Most antidiscrimination laws treat it as a form of sex discrimination when a supervisor harasses an employee, or when it occurs among coworkers and the employer fails to intervene. New York City sexual harassment attorneys can bring claims under several different employment statutes. Sex discrimination is not, however, the only type of cause of action that a person who has experienced sexual harassment can bring. A lawsuit filed in May 2020 in a Manhattan federal court demonstrates additional causes of action that may arise from sexual harassment. The case does not involve an employment relationship, but the claims in the lawsuit could apply in that kind of case. The plaintiff asserts negligence and several intentional torts, as well as a claim under New York City’s Gender-Motivated Violence Act (GMVA).

Under laws like the New York City Human Rights Law, sexual harassment constitutes employment discrimination on the basis of sex in two scenarios: (1) when a person must acquiesce to some sort of sexual demand as a condition of employment, or (2) when unwelcome sexual conduct or dialogue in the workplace is sufficiently pervasive or severe to create a hostile work environment. A key factor in most sexual harassment cases is an imbalance of power between the harasser(s) and the person(s) experiencing harassment.

The relationship between the plaintiff and the defendant in the lawsuit mentioned above featured a significant imbalance of power. The defendant is a male physician whom the plaintiff “greatly admired professionally.” The plaintiff is a woman who is fifty-two years younger than the defendant. According to her complaint, the plaintiff first sought treatment from the defendant in 2009, when she was nineteen years old. She alleges that “he developed an almost immediate infatuation with her and began pursuing her romantically.” She states that she “maintained a correspondence” with him over the years because of her professional admiration, but that she also “made it very clear that she was not interested in a romantic or intimate relationship.”

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In late 2017, a series of sexual harassment allegations against a prominent film producer ended his career and launched the #MeToo movement. New York City sexual harassment attorneys know that the kind of conduct described by the film producer’s accusers extends far beyond the entertainment business. It occurs on Wall Street and Madison Avenue, in restaurants and hotels, at fashion shows, and in almost every other workplace in New York City and around the world. Soon after the first allegations gained widespread publicity in 2017, a group of women filed a class action against the producer, his production company, and others alleging a wide range of causes of action related to alleged sexual harassment. In July 2020, a federal judge in New York City rejected a proposed settlement in the class action, questioning whether it would provide fair compensation.

Sexual harassment is considered a form of sex discrimination under laws like Title VII of the Civil Rights Act of 1964 in certain circumstances. For example, quid pro quo sexual harassment occurs when acquiescence to sexual demands is a condition of obtaining a job, keeping a job, or securing benefits in a job. The entertainment industry trope known as the “casting couch,” in which a performer — often but not always an actress — must agree to the sexual demands of a producer or director in order to get a part, constitutes this type of sexual harassment. Many of the allegations against the producer are examples of the “casting couch,” since he is alleged to have routinely cited his influence throughout Hollywood in order to coerce women into some form of sexual activity.

The 2017 class action against the producer does not directly allege sexual harassment or sex discrimination as a cause of action. It previously alleged causes of action commonly found alongside claims for sexual harassment, such as negligent supervision and retention and intentional infliction of emotional distress. In 2019, the court dismissed most of the plaintiffs’ claims, along with all defendants except the producer himself. The one remaining cause of action is based on the Trafficking Victims Protection Act.

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