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Sexual harassment takes many forms. While the classic example of workplace sexual harassment might involve a male supervisor making sexual demands of a female employee, New York City sexual harassment attorneys know that it can occur between individuals of any gender. The key elements of unlawful sexual harassment are that the conduct is unwelcome, and that it is based on gender in some way. A lawsuit recently filed in a Manhattan federal court presents a scenario that might only seem out of the ordinary to people who mainly know about sexual harassment from its depictions in popular culture. In this case, a former hotel employee, “a black man who identifies his sexual orientation as gay,” is alleging sexual harassment by his female former supervisor and other unlawful acts.

Employment laws in New York City, New York State, and at the federal level prohibit discrimination on the basis of sex or gender. Sexual harassment is considered a form of sex discrimination when the harassing conduct creates a “hostile work environment.” This occurs when unwelcome sexual conduct that is either pervasive or severe creates an atmosphere that a reasonable observer would consider “hostile,” and that renders a person incapable of performing their job duties to the best of their ability. The conduct can range from lewd comments or jokes in the workplace to direct sexual overtures or worse.

The plaintiff in the lawsuit mentioned above states in his complaint that he began working for the defendant hotel in April 2018. His job involved booking and managing reservations for the hotel and its onsite restaurant. He alleges that the sexual harassment by his supervisor began “nearly as soon as [he] began his employment.” He states that he never hid his sexual orientation from his employer or coworkers, but the supervisor allegedly made frequent remarks regarding his sexuality. He claims that this included “mak[ing] lewd comments about the physical attributes of male guests and celebrities and ask[ing] [his] opinion of their physical attributes.

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New York City pregnancy discrimination laws serve two functions. They prohibit employers from taking adverse actions because of pregnancy, childbirth, or conditions associated with either; and they require employers to provide reasonable accommodations. Some industries present greater problems for workers than others. This may be based on the nature of the work itself, or the legal relationship between workers and employers. In New York City’s art world, working conditions have long been difficult for people who are pregnant or are parents.

New York City Pregnancy Discrimination Laws

Both Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law (NYSHRL) protect workers against pregnancy discrimination, but neither statute uses that precise term. Title VII prohibits discrimination on the basis of sex, and defines “on the basis of sex” to include “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). The NYSHRL bars discrimination based on “familial status,” defined to include “any person who is pregnant or has a child.” N.Y. Exec. L. §§ 292(26)(a), 296(1)(a).

The NYSHRL and the New York City Human Rights Law (NYCHRL) require employers to provide reasonable accommodations for pregnant employees. The NYCHRL goes a step further by requiring specific accommodations for workers who have recently given birth. Under the NYSHRL, employers must make reasonable accommodations for “pregnancy-related conditions” in order to allow workers “to perform in a reasonable manner the activities involved in [their] job or occupation.” Id. at §§ 292(21-e), (21-f); 296(3). The NYCHRL sets similar requirements, but also requires employers to provide a “sanitary place, other than a restroom,” which employees can use to express breast milk in privacy, along with a refrigerator to store expressed milk. N.Y.C. Admin. Code §§ 8-102, 8-107(22).

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Under laws enacted in 2018 in both New York State and New York City, sexual harassment training must be provided on an annual basis. New York City’s law only applies to employers with fifteen or more employees, but the state law covers all employers, including those in the city. This requirement remains in effect, including for employers whose workforces have shifted to remote working. New York City sexual harassment lawyers see claims arising from every conceivable type of workplace, from offices to warehouses to purely virtual spaces. Just because an employee does not have to report to a workplace in person does not mean that they cannot experience unwanted sexual advances or remarks, or other hostile conduct.

The New York State law, found at § 201-g of the New York Labor Law, requires employers to implement sexual harassment prevention policies and to conduct annual sexual harassment training for employees. The state prepared a model policy and training program in 2018. The law requires employers to adopt those, or one that meets or exceeds the minimum standards set by the model policy and training program.

The law requires the state’s model sexual harassment training to be “interactive” and to include four specific points:
1. An “explanation of sexual harassment” that follows guidelines set by the New York State Division of Human Rights (DHR);
2. Examples of behavior constituting sexual harassment;
3. Information on state and federal laws that address sexual harassment, along with the remedies available to people who have experienced sexual harassment; and
4. Information on internal procedures for reporting, investigating, and adjudicating complaints.

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Sexual harassment is a form of sex discrimination under most employment discrimination statutes in the U.S. New York City sexual harassment attorneys can bring claims under laws at three levels — federal, state, and city — depending on the circumstances of a particular case. A defendant can try to dispose of a case before it goes to trial by various means, including summary judgment. This is a type of judgment where a judge finds that no “material issues of fact” are in dispute. In February, a New York City court denied a motion for summary judgment in a sexual harassment lawsuit.

The New York City Human Rights Law (NYCHRL) prohibits discrimination in employment on the basis of gender, including sexual harassment. One type of sexual harassment claim alleges that unwanted sexual conduct was pervasive or severe enough that it created a hostile work environment and prevented the plaintiff from performing their job duties. The NYCHRL also bars employers from retaliating against an employee who reports unlawful discrimination.

When a defendant moves for summary judgment on a claim under the NYCHRL, courts apply a “burden-shifting analysis” established by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If the plaintiff can show that they belong to a protected class, that they were qualified for their job, and that they suffered some adverse consequence because of their membership in the protected class, the burden of proof shifts to the defendant to show a nondiscriminatory reason for its action. The plaintiff may then have a chance to show that the employer’s reasons were a pretext for discrimination.

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While the #MeToo movement has made progress over the past several years in exposing sexual harassment in workplaces throughout the country, much work remains to be done. New York City sexual harassment attorneys know well that certain industries remain, in many ways, a “boys’ club” where female employees are expected to endure, at best, bawdy jokes and other inappropriate conduct. A lawsuit filed in a Manhattan federal courthouse in May 2020 alleges this kind of environment in a financial firm. The plaintiff alleges “relentless, egregious discrimination” on the basis of sex, followed by termination in retaliation for speaking out about it.

Sexual harassment is a type of sex discrimination in certain situations under New York City law, New York State law, and federal law. This includes a “hostile work environment” in which unwelcome conduct of a sexual nature is so severe or pervasive that a reasonable person would find it to be intolerable. Hostile work environments often involve a culture of sexual and/or sexist jokes or comments. A single incident, if severe enough, can support a hostile work environment claim, but most claims allege ongoing patterns of behavior.

The plaintiff states in her complaint that she began working for the defendant, a hedge fund located in New York City, in the summer of 2016 as an investment associate. Almost immediately, she claims, she noticed “a sexually charged and misogynistic work environment.” She describes her desk as being “part of a large table shared by seven people…located in the middle of the trading floor…within clear earshot of every person who sat on the floor.” The company allegedly employed few women during her time there. They all, she claims, had the title of “associate” and reported to male supervisors.

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In a landmark decision, the U.S. Supreme Court ruled on Jun 15, 2020 that federal antidiscrimination law bars employers from firing an employee because of sexual orientation, gender identity, or gender expression. New York City’s employment discrimination law specifically includes these as protected categories, but Title VII of the Civil Rights Act of 1964 only covers discrimination on the basis of sex and a few other factors. The Supreme Court’s 6-3 ruling in Bostock v. Clayton County, Georgia holds that Title VII’s prohibition on sex discrimination includes sexual orientation and gender identity or expression. The majority opinion, written by Justice Gorsuch, applies textual analysis to reach this conclusion.

Sex Discrimination Under Title VII

Title VII’s provision regarding sex discrimination in employment has an unusual history. The statutes other titles did not originally include any mention of sex discrimination. The member of the House of Representatives who introduced the amendment adding sex to Title VII’s list of protected categories reportedly did so “in a spirit of satire and ironic cajolery.” The amendment became part of the final statute, and remains a critically important tool in protecting people’s rights.

Since 1964, the Supreme Court has expanded the meaning of sex discrimination to include a rather wide range of acts. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), for example, the court held that sexual harassment constitutes sex discrimination under Title VII. Justice Gorsuch’s opinion in Bostock cites three cases that built on Title VII’s concept of sex discrimination:
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971): A policy excluding mothers of young children from consideration for employment violated Title VII.
Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978): A company violated Title VII when it required female employees to make larger pension contributions than male employees.
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998): Sexual harassment between members of the same sex can be actionable under Title VII.
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New York City employment discrimination laws protect workers from adverse actions based on factors like sex, race, religion, sexual orientation, or gender identity or expression. Under federal, state, and city law, sexual harassment is viewed as a type of discrimination on the basis of sex or gender. Laws like Title VII of the Civil Rights Act of 1964 allow individuals to file suit against employers who have discriminated against them, or who have failed to take reasonable action to prevent a co-worker from discriminating against or harassing them. In April, a former officer with the New York City Police Department filed a federal lawsuit alleging sexual harassment under Title VII and several other statutes. The lawsuit names the city and five NYPD officers as defendants.

Hostile work environment” is one type of sexual harassment recognized as unlawful sex discrimination. In order to prevail on a claim, a plaintiff must show that one or more people in the workplace engaged in unwelcome conduct that was either severe or pervasive enough to interfere with their ability to perform their job duties. Typically, they must show that a reasonable person would consider the conduct to be abusive, intimidating, or hostile beyond mere annoyance. Most hostile work environment claims involve ongoing behavior, but a single incident can support a hostile work environment claim, if it is especially severe.

The plaintiff in the lawsuit mentioned above alleges that a lieutenant, who is named as a defendant, “handpicked her” in February 2017 to work as his “Operator.” This job primarily involved driving him on patrol. She states that she felt he gave her “too much attention,” but did not complain out of fear of retaliation. While in the police vehicle, she claims that the lieutenant routinely made sexually suggestive remarks to her and asked her intrusive personal questions. This also allegedly occurred in the presence of other officers, but no one intervened.

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May has been designated as “Mental Health Month” since 1949 by Mental Health America (MHA) and other organizations. The term “mental health” applies not only to diagnosed mental illnesses but also in a much broader sense to one’s emotional and psychological well-being. Twenty percent of the population will deal with mental illness at some point in their lives, according to MHA, but everyone must take care of their mental health. As New York City employment discrimination attorneys, we see the impact that acts like sexual harassment and discrimination can have on our clients. We see supervisors, managers, and others who abuse their authority, and employers who do little to stop it. Asserting one’s right to a workplace free of sexual harassment is often an important step in reclaiming control over one’s life. New York law provides remedies that can help restore a sense of justice.

Sexual Harassment as an Abuse of Power

Employment discrimination laws in New York City recognize sexual harassment as a type of unlawful discrimination on the basis of sex. Quid pro quo sexual harassment involves situations where an employee must submit to some sort of sexual demand as a condition of employment. This could be as overt as a manager demanding sexual activity in exchange for giving someone a job, but the demand could be anything of a sexual nature which the employee feels they cannot turn down.

Hostile work environment involves pervasive and unwelcome conduct that impedes a person’s ability to do their job. As with quid pro quo sexual harassment, it could be overt behavior like unwanted sexual contact or assault. It could also involve sexual jokes or banter. A hostile work environment claim usually involves a pattern of behavior that occurs over time, but a single incident could support a claim if it is egregious enough. An employee claiming a hostile work environment usually must show that the employer was aware of the conduct, but failed to take reasonable steps to prevent it.

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The novel coronavirus, known more officially as SARS-CoV-2 and less officially as “the coronavirus,” has had a devastating impact on New York City and surrounding areas. While the daily number of new cases in New York is decreasing, the virus shows no sign of slowing down in many other parts of the country, even as most states are in the process of “reopening” their economies. The disease is bad enough by itself, but its supposed origins in China have also led to an unfortunate backlash against people perceived to be of Chinese heritage. In practice, this often means anyone who appears to have Asian ancestry, including in New York City. Discrimination, harassment, and worse have occurred in workplaces and in public. The New York City Commission on Human Rights (CHR), which works to prevent discrimination on the basis of race, national origin, and other factors, created a response team in April to address discrimination and harassment related to the pandemic. If you feel you have suffered from discrimination or harassment while at work based on real or perceived national origin, it is prudent that you speak with a New York City national origin discrimination attorney as soon as possible to go over your rights under the law.

Laws Against Race and National Origin Discrimination in the Workplace

The New York City Human Rights Law (NYCHRL) prohibits workplace discrimination based on a person’s “actual or perceived…race…[or] national origin.” N.Y.C. Admin. Code § 8-107(1)(a). This includes terminating someone’s employment, demoting them, denying them shifts or assignments, and other adverse actions, when the sole or primary purpose is that they are a particular race or have a particular national origin.

The coronavirus pandemic involves multiple forms of employment discrimination. The CHR has adopted guidelines from the Equal Employment Opportunity Commission (EEOC) related to disability discrimination. The EEOC first published the guidelines in October 2009 in response to the H1N1 pandemic, and later adapted them for COVID-19. The CHR created the response team to look into anti-Asian bias.

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Employees who have experienced sexual harassment in the workplace can bring claims for relief under New York City employment discrimination laws. These laws may, at times, seem to conflict with non-disclosure agreements (NDAs), which are becoming an increasingly common feature of employment contracts and severance agreements around the country. Several months ago, the news cycle included reports on the use of NDAs to prevent former employees of a former New York City mayor, who was running for president at the time, from talking about discrimination and sexual harassment claims they had brought against his company. Recent changes to state law in New York limit employers’ ability to use NDAs with regard to discrimination claims, including sexual harassment.

Elements of a Sexual Harassment Claim

In order to prevail in a claim for sexual harassment, a plaintiff must prove that the conduct they experienced was “on the basis of sex.” The remaining elements of a sexual harassment claim depend on the type of conduct alleged:
– A claim for hostile work environment requires evidence that the conduct was unwelcome, and that it was either severe or pervasive.
– If a plaintiff is alleging quid pro quo sexual harassment, they must demonstrate that acquiescence to sexual demands were a condition of employment.
If the alleged perpetrator was not in a supervisory or managerial position over the plaintiff, they must also show that the employer knew or should have known about the harassment, but failed to act.

Use of Non-Disclosure Agreements in Employment

Employers often use NDAs in employment contracts and severance agreements to protect trade secrets and other confidential information. NDAs in severance agreements might also bar employees from disparaging the employer after the termination of the employment relationship. These can be legitimate purposes, particularly regarding the protection of proprietary information. When they prevent a former employee from speaking out about sexual harassment, they can be seen as an impediment to justice.

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