bullyingSexual harassment violates employment non-discrimination laws throughout the country. While New York City has one of the most expansive non-discrimination statutes in the country, offering numerous protections not available in other places, the laws regarding sexual harassment have become fairly uniform nationwide. Interesting developments in sexual harassment law can occur almost anywhere in the U.S. A recent sexual harassment trial in a Texas state court resulted in a jury verdict of over $1 million. Aside from the large award of damages, the case is notable for several other reasons. More than one-third of the verdict was assessed directly against the plaintiff’s supervisor in an individual capacity. Additionally, much of the coverage of the case described it as a fight over “workplace bullying.” While bullying has received a great deal of attention in the context of schools, bullying in the workplace has no specific legal remedy apart from existing anti-discrimination law.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of sex and other factors. Court decisions have established that sexual harassment is a form of sex discrimination under certain circumstances, such as when a supervisor or manager makes unwanted sexual advances toward an employee, or attempts to condition some benefit of employment on participation in sexual activity. It can also include remarks and actions of a sexual nature, as well as any pattern of sex-based harassment that creates a hostile work environment.

Workplace bullying does not have a precise legal definition, but it is broader in scope than sexual harassment in common usage. At least three states—California, Tennessee, and Utah—have laws that directly address workplace bullying in some form, although none of them allow private causes of action. California’s law, for example, requires employers with 50 or more employees to provide supervisory employees with training regarding issues like sexual harassment. Cal. Gov. Code § 12950.1.

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CUNYSexual harassment remains a pervasive problem in workplaces in New York City and throughout the country. Employment statutes prohibit sexual harassment as a form of sex discrimination, but this only applies when a complainant’s relationship to their alleged harasser is based on employment. Other laws apply in non-employment situations in which a power imbalance makes it difficult to push back against sexual harassment. Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., addresses discrimination on the basis of sex, including sexual harassment, in educational institutions. Late last year, the U.S. Department of Education (DOE) announced that it had reached a resolution in a sexual harassment policy dispute with an institution belonging to the City University of New York (CUNY) system. In re CUNY, Hunter Coll., No. 02-13-2052, resolution agmt. (DOE, Oct. 31, 2016).

Title IX prohibits sex discrimination by “educational institutions,” which it defines to include both public and private schools, from preschools through colleges and universities. 20 U.S.C. § 1681(c). The statute only applies to educational institutions that receive federal assistance, although this covers a substantial number of schools around the country. Much like Title VII of the Civil Rights Act of 1964, Title IX does not expressly mention sexual harassment as a type of sex discrimination. The Supreme Court has held that the statute authorizes lawsuits for sexual harassment and the recovery of monetary damages. See, e.g., Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).

Employers who are subject to Title VII are required to investigate claims of sexual harassment and to make reasonable efforts to remedy situations in which it has occurred. Failing to do so exposes them to liability to the aggrieved employee. Title IX is more specific, setting guidelines for educational institutions to establish “grievance procedures” and to designate a “responsible employee” to address complaints. 34 C.F.R. § 106.8. They must also follow specific procedures to notify current students, applicants for admission, parents of minor students, employees, and others of these policies and procedures. Id. at § 106.9.

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Boyhood and lawlessnessCriminal history can be a major stumbling block to finding a job. Employers may not want to hire people with criminal records for a variety of reasons, but state and city laws in New York City prohibit discrimination based on criminal history, with only a few exceptions. “Criminal history” is a broad category that includes records of arrests, charges, convictions, probation, incarceration, and parole. Neither New York nor New York City laws specifically mention records of juvenile offenses. A new law that took effect in California at the beginning of 2017 expressly adds juvenile records to that state’s criminal history discrimination law. Juvenile records in New York are sealed as a matter of law, so this might not be an issue of serious concern in this state.

New York law limits the ability of employers to consider criminal history during the hiring process. Article 23-A of the Corrections Law, N.Y. Corr. L. § 750 et seq., prohibits public and private employers from discriminating on the basis of criminal history, with two exceptions:  (1) if an individual’s criminal record has a direct bearing on a specific job, or (2) if that individual’s history presents a significant risk to the safety of certain people or the public. If an employer makes an adverse decision based on an applicant’s or employee’s criminal history, Art. 23-A requires the employer to notify them in writing and give them an opportunity to respond.

Under the New York State Human Rights Law (NYSHRL), a violation of Art. 23-A may constitute an “unlawful discriminatory practice.” N.Y. Exec. L. § 296(15). The New York City Human Rights Law (NYCHRL) adopts this provision of the NYSHRL, specifically citing Art. 23-A. It also prohibits employers from stating in job advertisements that a position is limited to people with no criminal record, and it bars employers from asking an applicant about criminal history until they have made a conditional offer of employment. N.Y.C. Admin. Code §§ 8-107(9)(a)(3) – (5).

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Central ParkSexual harassment in the workplace violates city, state, and federal employment laws in New York City. Under all of these laws, sexual harassment is viewed as a type of sex discrimination. An underlying assumption in many, but certainly not all, cases is that the perpetrator is attracted to the complainant. Employment laws in New York City protect a worker in this sort of scenario, but what about when an adverse employment action is based on a lack of attraction, or other purported concerns about an employee’s appearance? To put that in blunter terms, can an employer fire an employee for being “ugly”?

No employment statute in New York expressly mentions appearance, but other categories might apply in some situations. The New York City Human Rights Law (NYCHRL) prohibits employment discrimination on the basis of sex, gender identity or gender expression, age, disability, and other factors. The New York State Human Rights Law (NYSHRL) provides many of the same protections. Title VII of the federal Civil Rights Act of 1964 lists fewer protected categories, but the U.S. Supreme Court has established fairly broad protections under the umbrella of sex discrimination. The Americans with Disabilities Act (ADA) of 1990 and the Age Discrimination in Employment Act (ADEA) of 1967 also address employment discrimination.

Addressing this issue from a legal standpoint is difficult, since it is largely subjective. Beauty, as they say, is in the eye of the beholder, and some employers have successfully argued that appearance standards are a bona fide occupational qualification exempting them from discrimination laws. This has occurred in cases of men applying at restaurants that only hire female servers and women fired for gaining too much weight. All of these cases arguably involve standards of attractiveness or lack thereof. Several courts have also held that firing a female employee for being too attractive—which borders on an argument that termination was necessary to avoid sexual harassment—is not unlawful sex discrimination. Still, termination for being “ugly” might violate existing laws in certain situations.

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RCMP Musical Ride (2016)A class action alleging sexual harassment against a national law enforcement agency has led to a likely $100 million settlement, as well as a tearful public apology from the head of that agency. This is refreshing and welcome news, but people in the United States have less cause to celebrate than our neighbors to the north, since this all occurred in Canada. The class action accuses the Royal Canadian Mounted Police (RCMP) of allowing widespread sexual harassment of female employees and officers to persist from at least 1974 to 2011. Canadian law is similar to the laws of the United States and New York in many ways, as they all have roots in English common law. The proposed settlement and the apology are good news in the fight against sexual harassment and sex discrimination in the workplace.

Workers in New York City have recourse against unlawful acts like sexual harassment under federal, state, and city law. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex, and the U.S. Supreme Court has expressly extended this protection to include sexual harassment. The New York State Human Rights Law (NYSHRL) provides similar protections, as does the New York City Human Rights Law (NYCHRL). Title VII applies nationwide, but not every state or city in this country has the same legal protections offered by the NYSHRL and NYCHRL.

The Ontario Human Rights Code (OHRC) is similar to the NYSHRL. It provides similar protections against workplace discrimination and harassment, and it applies to employers and employees throughout the province. Much like various court decisions from New York and around the U.S., the OHRC defines “harassment” as “engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome.” It therefore includes both an objective definition of harassment, based on what a reasonable person would consider to be “unwelcome,” and a subjective one that addresses what the person engaging in the conduct should be expected to know.
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Staten Island FerryEmployment statutes like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL) allow employees to sue their employers for sexual harassment and other unlawful acts. A plaintiff must establish standing to sue, usually by demonstrating an employee-employer relationship. They must also establish that the employer can be held liable for the alleged harassment. New York City law provides several means of holding an employer liable for acts of individual employees, but these provisions still do not take all of the features of the modern workplace into account. A New York City federal court considered whether the NYCHRL authorized an employee to sue a company that was subcontracted to her employer, based on actions by its employee. In other words, the defendant was not the plaintiff’s employer. The court identified circumstances in which the NYCHRL allows this sort of claim. Suarez v. City of New York, et al., No. 1:11-cv-05812, mem. order (E.D.N.Y., Mar. 31, 2015).

Under the common-law concept of agency, a principal is liable for actions by an agent when the agent acts on behalf of the principal. Courts apply the doctrine of respondeat superior in tort cases. This doctrine holds that an employer is only liable for actions undertaken by an employee in the course of that employee’s job duties. The employer of a delivery driver, for example, might be legally liable for damages caused by the driver while making a delivery. A similar principle applies in sexual harassment claims.

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Staten Island FerrySexual harassment in the workplace can have a devastating impact, causing financial, emotional, and even physical harm. While that impact is usually—and justifiably—the focus, it is worth noting that sexual harassment is also bad for business, not only because it can result in civil liability but also because of the damage it does to a company’s productivity. Sexual harassment can even pose a danger to the public, as a lawsuit currently pending in a Brooklyn federal court alleges. The plaintiff claims that an environment of sexual harassment led to her supervisors ignoring her communications while she was working in her capacity as an assistant captain on the Staten Island Ferry. KA v. City of New York, No. 1:17-cv-00378, complaint (E.D.N.Y., Jan. 23, 2017). A lack of contact between a ferry and ferry employees on land, the plaintiff alleges, puts ferry passengers at risk.

Title VII of the federal Civil Rights Act of 1964 prohibits discrimination on the basis of sex, as well as retaliation against an employee who speaks out against such unlawful conduct. The legal definition of sex discrimination includes various forms of sexual harassment, such as demands for sexual activity of some sort as a condition of employment. It also includes unwanted remarks or overtures of a sexual nature, as well as sexualized conduct that creates a hostile work environment. The New York State Human Rights Law (NYSHRL) includes similar provisions that apply statewide, and the New York City Human Rights Law (NYCHRL) provides these protections at the city level.

According to her complaint, the plaintiff has worked for the Staten Island Ferry for about 10 years, from 2007 to 2008 and from April 2009 to the present. She states that she became licensed to captain a ferry in 2010, and she has held the position of assistant captain since about 2011. She has sought promotion to captain but alleges that her requests have been met with either “vague, evasive, and ultimately empty comments” or “definitive, discriminatory remarks…such as…’you can’t stand up to the men.’” KA, complaint at 5-6.

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Statue of LibertyNew York City is truly diverse, providing a home to millions of people of different religions, races, ethnicities, and cultures. This diversity helps make New York City a destination for people from all over the country and all over the world. When one group suffers from discrimination, harassment, and other disparate treatment because of their religion, race, or ethnicity, all of New York City suffers. We have entered a difficult time in this country, with widespread reports of harassment and even assaults against people of the Muslim faith or people perceived to be of the Muslim faith. This type of treatment can also enter the workplace, but anti-discrimination laws at the federal, state, and city levels assist employees in asserting their rights. A campaign launched by the New York City Mayor’s Office and the Commission on Human Rights, “I Am Muslim NYC,” seeks to educate people about city law.

The New York City Human Rights Law (NYCHRL) offers more protections for workers than almost any other employment statute in the country. It not only prohibits religious and racial discrimination but also expressly addresses employers’ duty to accommodate reasonable requests related to religious observances. In connection with its campaign, the city has issued a fact sheet outlining the ways the NYCHRL protects Muslims and others from discrimination in employment, housing, and public accommodations like restaurants and hotels. It includes three important points about employment discrimination.

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clapper boardNew York City has some of the strongest employee rights protections in the country. Federal law prohibits workplace discrimination on the basis of five factors:  race, sex, religion, color, and national origin. The New York City Human Rights Law (NYCHRL) goes substantially further than this. A recent decision from a New York City court addresses the application of the NYCHRL to claims of sexual orientation discrimination, and it indicates that the statute protects against a wide range of unlawful acts by employers, managers, supervisors, and co-workers. Zimmer v. Warner Brothers Pictures, Inc., 103732/2012, NYLJ 1202777712512, at *1 (N.Y. Sup. Ct., N.Y. Cty., Dec. 23, 2016).

Title VII of the Civil Rights Act of 1964, the main federal statute addressing employment discrimination, does not expressly mention sexual orientation as a protected category. The Equal Employment Opportunity Commission (EEOC), the agency authorized to enforce Title VII, has taken the position that discrimination on the basis of sexual orientation falls under Title VII’s concept of sex discrimination. Baldwin v. Dept. of Transp., App. No. 0120133080, decision (EEOC, Jul 15, 2015). This determination is not binding on any court of law, however. Some federal district courts have ruled in favor of plaintiffs claiming sexual orientation discrimination under Title VII, but at least one appellate court has rejected such a claim. Hively v. Ivy Tech Community College, South Bend, 830 F.3d 698 (7th Cir. 2016).

While the EEOC must read between the lines of Title VII to find any sort of protection against sexual orientation discrimination, the NYCHRL is entirely unambiguous on the matter. Its prohibitions of employment discrimination include “actual or perceived…sexual orientation” as a protected category. N.Y.C. Admin. Code § 8-107(1)(a). It defines “sexual orientation” to include “heterosexuality, homosexuality, or bisexuality.” Id. at § 8-102(20).

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New York CityA former employee of a New York City medical marijuana company is suing the company for multiple causes of action under state and city laws. JP v. TO, et al., No. 158407/2016, complaint (N.Y. Sup. Ct., N.Y. Cty., Oct. 6, 2016). The plaintiff alleges that she was subjected to sexual harassment, that she faced discrimination based on her religion and her health status, and that the company terminated her in retaliation for complaining about these acts. In addition to the business entity, the defendants include several individual owners, directors, and officers of the company.

Laws at the city and state levels in New York City prohibit employment discrimination on a wide range of bases, including sex, religion, and disability. Under both the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL), sexual harassment is considered to be unlawful sex discrimination. Both statutes define “disability” in this context to include “a physical, mental or medical impairment,” and the NYCHRL also adds psychological impairments to the list. N.Y. Exec. L. § 292(21), N.Y.C. Admin. Code. § 8-102(16). They both generally define an “impairment” as arising from a physiological or neurological condition, as well as a psychological or mental condition in the case of the NYCHRL.

The plaintiff worked for the defendant as an “in-house consultant and project manager.” JP, complaint at 3. She describes herself as a Roman Catholic and a “female survivor of cancerous PASH,” a type of breast cancer. Her condition “cause[s] her a large degree of pain and discomfort” and “requir[es] her to take prescribed painkillers and muscle relaxers periodically.” Id. at 4. Her job responsibilities, according to her complaint, included licensing and compliance with state medical cannabis laws, project management, and various business planning and development activities. She alleges a variety of actions that violated state and federal laws.

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