New York Employment Attorney Blog — Published by New York Employment Lawyers

July 8, 2020

New York Court Denies Defendant’s Motion for Summary Judgment in Sexual Harassment Lawsuit

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.

June 29, 2020

New York City Hedge Fund Allowed Pervasive Sexual Harassment, According to Lawsuit

by Phillips & Associates

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.

June 26, 2020

U.S. Supreme Court Rules that Title VII Covers LGBTQ Discrimination – Positive Development for New York Workers and Others

by Phillips & Associates

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.
Continue reading

June 18, 2020

Former NYPD Officer Alleges Sexual Harassment by Supervisor in New York City Lawsuit

by Phillips & Associates

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.

June 10, 2020

Sexual Harassment, Mental Health, and Damages for Emotional Distress in New York City

by Phillips & Associates

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.

June 5, 2020

New York City Takes Stand Against Race and National Origin Discrimination Based on Coronavirus Fears

by Phillips & Associates

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.

May 28, 2020

Non-Disclosure Agreements in New York City Sexual Harassment Cases

by Phillips & Associates

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.

May 22, 2020

Unemployment Discrimination and COVID-19 in New York City

by Phillips & Associates

New York City employment discrimination law bars employers from making adverse decisions based solely on a job applicant’s current unemployment in most situations. Bias against people with gaps in their employment history, especially recent gaps, is a significant problem all over the country. The City Council passed this law in 2013, in part to give greater opportunities to people who may have had difficulty finding work. This could become substantially more important in the months and years to come. The coronavirus pandemic will almost certainly subside at some point. People who were unable to work during this time, perhaps because their employer laid them off, they could not find work due to quarantine or stay-at-home orders, or they had to recover from COVID-19, could have difficulty finding a new job without help from New York City law.

Unemployment Discrimination in New York City

The New York City Human Rights Law (NYCHRL) defines “unemployed” as “not having a job, being available for work, and seeking employment.” N.Y.C. Admin. Code § 8-102. The law generally prohibits employers from:
– Misinforming someone about a job’s availability because of that person’s unemployment;
– Advertising that current employment is a requirement for a job opening;
– Advertising that applicants who are not currently employed will not be considered; or
– Basing decisions related to “hiring, compensation or the terms, conditions or privileges of employment” on a person’s unemployed status. Id. at § 8-107(21)(a).

Employers may consider current unemployment if they have “a substantially job-related reason for doing so.” Id. at § 8-107(21)(b)(1)(a). They may also ask about how an applicant’s prior employment ended.

May 19, 2020

New York City Laws on Caregiver Discrimination During the Coronavirus Pandemic

by Phillips & Associates

The global coronavirus pandemic has hit New York City particularly hard. Many people have concerns not only about their own health, but the health of family members who require care. New York City employment discrimination laws protected workers with caregiver responsibilities before the coronavirus arrived. Quarantine and isolation have added a new dimension to the concept of a “caregiver.” Laws passed by the federal and state governments to address problems caused by the pandemic may offer additional protections against discrimination and retaliation based on an employee’s caregiving responsibilities.

What Is Caregiver Discrimination?

The New York City Human Rights Law (NYCHRL) prohibits discrimination by employers on the basis of “caregiver status.” It defines a “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” The term “care recipient” can refer to anyone living in the caregiver’s home; or a “covered relative” like a parent, spouse, sibling, child, grandchild, or grandparent, whether or not they live with the caregiver. In either case, the care recipient must need the caregiver’s assistance with “medical care or to meet the needs of daily living.” Id.

The NYCHRL does not define the term “direct and ongoing care,” and it does not appear that any court has ruled on its specific meaning. A plain-language interpretation suggests that it means care that requires a substantial amount of the caregiver’s time and attention. This could therefore include:
– The caregiver’s minor child, who resides with the caregiver;
– The caregiver’s minor child who resides elsewhere, but needs regular care from the caregiver;
– A person who lives with the caregiver, regardless of whether they are related; or
– A relative who does not reside with the caregiver.

April 29, 2020

Amid Coronavirus Quarantines, Workplace Sexual Harassment In New York Goes Virtual

by Phillips & Associates

As the coronavirus and COVID-19 has ravaged New York City and many other parts of the world, many workplaces have quickly adapted by allowing employees to work from home. The use of videoconferencing software is growing at astonishing rates. According to some sources, downloads of one popular videoconferencing app increased from 56,000 per day to over 2.1 million per day between January and March. Widespread use of remote-working technologies brings other problems, though. Workplace sexual harassment has always had an online, virtual component, as harassers make use of email and text messaging. With vastly more people working remotely, and fewer people physically occupying workplaces, New York sexual harassment attorneys could see more claims arising from virtual spaces.

From a legal standpoint, sexual harassment in two general scenarios constitutes sex discrimination under laws like Title VII of the Civil Rights Act of 1964. Quid pro quo sexual harassment occurs when an employee must accede to some sort of sexual demand as a condition of employment. A hostile work environment occurs when pervasive and unwelcome sexual conduct in the workplace renders an employee unable to perform their job duties. This usually involves multiple acts occurring over a span of time, ranging from inappropriate jokes to more overt sexual acts. A single incident could support a hostile work environment claim, however, if it is particularly heinous or severe.

Neither type of sexual harassment has to occur in-person for it to violate antidiscrimination statutes. Online harassment is as old as the internet itself. A supervisor or manager could, for example, commit quid pro quo sexual harassment by refusing to provide favorable work assignments to an employee unless that employee engages in explicit online interactions or sends explicit photos. A workplace that tolerates lewd jokes or other sexual banter does not become any less hostile if it moves entirely to online spaces. An employee who is threatened or discomfited by this behavior in an in-person staff meeting could be just as distressed by the same behavior in a video conference call.