Transgender Pride FlagNew York City employment discrimination laws include express prohibitions against discrimination because of gender identity or gender expression. At the federal level, whether Title VII of the Civil Rights Act of 1964 contains similar protections depends on where the claim arises. Prior to 2017, the U.S. Department of Justice (DOJ) held that gender identity is covered by Title VII’s sex discrimination provisions. It filed suit in 2015 on behalf of a transgender woman alleging gender identity discrimination. United States v. Southeastern Okla. State Univ., No. 5:15-cv-00324, complaint (W.D. Okla., Mar. 30, 2015). The following year, officials from multiple states sued the federal government over certain policies on transgender rights. State of Texas, et al. v. United States, et al., No. 7:16-cv-00054, complaint (N.D. Tex., May 25, 2016). The two cases became intertwined as the issue of transgender rights gained attention in 2017.

Some courts have held that gender identity discrimination falls under Title VII’s prohibition on sex discrimination, finding it to be “because of sex,” as defined by the statute. They often cite a U.S. Supreme Court decision finding that “sex stereotyping” constitutes sex discrimination under Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Gender identity discrimination, the argument goes, is sex discrimination because an individual does not conform to stereotypes about a particular gender. Other courts have held that, absent express inclusion of gender identity as a protected category, using those or similar words, it is not covered by the statute.

The DOJ filed suit on behalf of a complainant who began working at an Oklahoma university in 2004, when she “presented as a man and went by a traditionally male name.” Southeastern, complaint at 4. She notified the university of her intent to transition to a female identity in 2007. She alleged that, once this process began, and after it was complete, her employer treated her differently, and she was ultimately denied tenure because of her gender identity. The court ruled in July 2015 that the complainant is part of a protected class because of “sex stereotyping based on a person’s gender non-conforming behavior.” Southeastern, mem. op. at 5 (Jul. 10, 2015). A jury entered a verdict in the complainant’s favor in late 2017 and awarded her $1.165 million in damages.
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cheerleadersIn every type of workplace in New York City, sexual harassment is an unlawful employment practice. Employers have a duty to protect employees from harassment not only by supervisors and co-workers but also by customers. The type of work performed has no bearing on this, which one might hope is something that would not need to be said. Members of cheerleading squads for professional sports teams around the country have spoken out recently about sexual harassment experienced as part of their jobs. The job of a professional sports cheerleader is to entertain, with the entertainment coming from a combination of athletic prowess and physical attractiveness. To use football as an example, certain aspects of the game still cater to certain stereotypical male preferences, even though women now make up nearly half of the NFL’s fan base. While professional cheerleaders must have extensive dance training and experience, policies and practices at both the team and league levels sometimes place them in a more decorative role—one that can leave them exposed to the risk of sexual harassment and assault by fans and others. A recent discrimination complaint further outlines the workplace challenges cheerleaders face.

Cheerleading as a profession falls into an unusual legal category, in which sex and—for lack of a better term—sex appeal may be viewed as key qualifications for a job. Employment statutes prohibit discrimination based on sex, but not necessarily based on attractiveness. Court decisions and other laws directly addressing this are relatively rare, and they can vary widely from one industry or workplace to another. Over 30 years ago, a federal court ruled that an airline could not use “sex appeal” as a “bona fide occupational qualification” for its flight attendants. Wilson v. Southwest Airlines Co., 517 F.Supp. 292, 293 (N.D. Tex. 1981). The court noted an exception, however, for jobs involving “vicarious sexual recreation.” Id. at 301. It cited two 1971 decisions by the New York Human Rights Appeals Board, allowing Playboy Clubs to discriminate based on sex and physical appearance.

The job of professional sports cheerleaders includes much more than performing during games. Cheerleaders are also expected to act as ambassadors for their team by attending team-sponsored events and other promotional events. According to a report in the New York Times, this often includes events at which alcohol consumption occurs, such as tailgate parties, sometimes leading to “offensive sexual comments and unwanted touches by fans.” Many women reported “go[ing] in pairs or small groups to feel safer.”

LibelAsserting a New York City sexual harassment claim requires not only careful planning and preparation but also courage. Standing up and speaking out can be extremely difficult for anybody. Laws like the New York City Human Rights Law and Title VII of the Civil Rights Act of 1964 prohibit employers from retaliating against individuals who report unlawful activity. People who are subjects of sexual harassment allegations may be able to respond by using counterclaims or separate litigation. A lawsuit filed recently in a New York City court offers an example of this, although this particular case targeted the defendant in a sexual harassment case instead of the plaintiff. The lawsuit alleged defamation and numerous other claims in connection with a sexual harassment case, but it was dismissed with prejudice. Cortes v. Twenty-First Century Fox America, Inc., et al., No. 1:17-cv-05634, opinion (S.D.N.Y., Jan. 9, 2018).

Defamation is a blanket legal term for false statements that cause damage to a person. Because of the First Amendment’s free speech protections, courts have established strict limits on defamation claims. A defamation claim is not likely to be an effective means of countering a sexual harassment claim, but it happens sometimes. It is useful to know how defamation claims work and how they might not apply to statements made in connection with an employment lawsuit.

The specific elements of defamation vary from one jurisdiction to another. At a minimum, it requires evidence of a false statement that caused actual harm. If the plaintiff is a public figure, they must also show “actual malice,” i.e., that the defendant intended for the plaintiff to be harmed. Church of Scientology Intl. v. Behar, 238 F.3d 168, 173 (2d Cir. 2001). Certain types of statements are considered inherently defamatory, if false. This is known as defamation per se, and it may include statements falsely accusing a person of a “serious crime.” Lan Sang v. Ming Hai, 951 F.Supp. 2d 504, 525 n. 6 (S.D.N.Y. 2013).

shhhMultiple employment laws in New York City prohibit employers from discriminating on the basis of sex, which includes sexual harassment. Employers, however, may use contractual provisions to limit employees’ ability to file suit. An arbitration clause in an employment agreement, for example, may require the submission of any disputes to a private arbitrator, which can have various advantages for employers. Another contractual provision that has received attention recently is the nondisparagement clause, which states that one or both parties may not make public comments disparaging the other party. Some nondisparagement clauses expressly prohibit making reports to government regulators, leading to concern about chilling effects on employees who might otherwise come forward with allegations of sexual harassment. Critics further allege that nondisparagement clauses provide protection for individuals who engage in sexual harassment by keeping the allegations against them secret.

Nondisparagement clauses can appear in employment agreements, severance agreements, and settlement agreements resolving litigation. They have some legitimate purposes, but keeping employees and former employees from asserting their rights under statutes like Title VII of the Civil Rights Act of 1964 is not among them. A series of court decisions indicates that employers sometimes use these clauses to prevent individuals from bringing lawsuits, or even from discussing their grievances with other employees. Since enforcing a nondisparagement clause involves legal action in court, it can affect free speech rights under the First Amendment.

The Equal Employment Opportunity Commission (EEOC) has addressed at some length whether employees can waive protections of laws like Title VII in employment contracts. It formally adopted a policy of “preserving access to the legal system” in its interpretation of contracts with nondisparagement clauses. A body of caselaw also addresses the use of nondisparagement clauses, balancing among the various interests at issue. A New York City federal district court, for example, ruled that a nondisparagement clause in a settlement agreement “must include a carve-out for truthful statements about plaintiffs’ experience litigating their case.” Lopez v. Nights of Cabiria, LLC, 96 F.Supp.3d 170, 180 n.65 (S.D.N.Y. 2015).

New York City’s anti-discrimination laws prohibit sex discrimination in employment, including sexual harassment and numerous other forms of unlawful conduct. Occasionally, employers allege that court intervention violates civil rights protected by the U.S. Constitution. The Second Circuit Court of Appeals ruled last year in a sex discrimination and retaliation case against a religious institution. Although the plaintiff did not directly allege sexual harassment, her complaint alleged that her supervisor made multiple unfounded accusations of sexual impropriety against her. The court ruled that her claims were barred by the “ministerial exception,” which is based on religious protections in the First Amendment. Fratello v. Archdiocese of New York, 863 F.3d 190 (2d Cir. 2017).

Religious symbolsThe First Amendment states that the government may not “prohibit[] the free exercise” of religion. The U.S. Supreme Court has interpreted the Free Exercise Clause as creating a “ministerial exception” to anti-discrimination laws, holding that “the church must be free to choose those who will guide it on its way.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012). The Hosanna-Tabor case involved a teacher at a religious school who was terminated while out on disability leave. She sued for disability discrimination, but the district court dismissed her claim.

The Supreme Court noted that the school made a distinction between “contract teachers” and “called teachers,” with the latter serving a more directly religious “role in conveying the Church’s message and carrying out its mission.” The plaintiff was a called teacher and therefore fell under the ministerial exception. The opinion does not offer a clear definition of “minister.” In a concurring opinion, Justice Thomas stated that courts should “defer to a religious organization’s good-faith understanding of who qualifies as its minister.” Critics of the ruling have noted that it expands the ministerial exception beyond religious leaders to employees of religious organizations.

Solar systemSexual harassment pervades almost every type of workplace throughout the country. While New York sexual harassment statutes offer employees tools to fight back against harassment, hostile work environment, and retaliation, new stories of harassment appear nearly every day alongside success stories. It is worth examining how the law protects people from harassment in the workplace, and how the law falls short. Laws like the New York City Human Rights Law (NYCHRL) provide protection against these practices, but many industries and professions continue to maintain cultures that often seem to support the harassers over the harassed. A story published last year in the Washington Post describes a survey of space scientists, which indicated that both racial and sexual harassment are significant concerns, particularly for women of color working in that field.

The NYCHRL, Title VII of the Civil Rights Act of 1964, and many other statutes prohibit workplace discrimination on the basis of sex, race, and other factors. Sexual harassment is generally considered to be a form of sex discrimination under all of these statutes. Unlawful sexual harassment includes a range of acts, including unwelcome sexual remarks, jokes, or overtures that, in the aggregate, create a hostile work environment. Acts that, examined in isolation, might seem relatively minor could become part of a hostile work environment if they occur in vast numbers. A small number of acts could constitute a hostile work environment if they are particularly severe.

Many workers do not speak out about harassment for fear of losing their jobs or suffering other punitive actions. In addition to prohibiting sexual harassment, these laws also prohibit retaliation against employees who report concerns to a supervisor or manager, who take other actions to oppose the alleged harassment internally, or who make a report to a government agency like the New York City Human Rights Commission or the federal Equal Employment Opportunity Commission.

HarassmentEmployment laws in New York City and around the country prohibit sexual harassment, which is considered a form of sex discrimination. These laws also prohibit retaliation by an employer against an employee who reports alleged sexual harassment or otherwise asserts their rights, known as “protected activity.” This means that employers cannot fire or demote an employee, or otherwise subject them to adverse employment actions, based on their reporting unlawful employment practices to a supervisor or manager, or to a government agency like the Equal Employment Opportunity Commission. A lawsuit filed last year claimed sexual harassment by a coworker, with allegations that included brandishing a firearm at the plaintiff, as well as retaliation by the employer. Dodaro v. JNKO Mgt., Inc., No. 1:17-cv-00348, complaint (W.D. Mich., Apr. 17, 2017). The case demonstrates how retaliation might occur in the course of an employer’s response to a New York sexual harassment allegation.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of several factors, including sex. 42 U.S.C. § 2000e-2(a)(1). Various U.S. Supreme Court decisions have established sexual harassment as a form of sex discrimination. Title VII also prohibits retaliation against employees who have “opposed any practice made an unlawful employment practice,” or who have participated in any way in an investigation of an alleged unlawful practice. Id. at § 2000e-3(a).

Courts have differed over which sorts of actions may constitute retaliation under Title VII. The Supreme Court ruled on retaliation in sexual harassment claims in Burlington N. & S.F. R. Co. v. White, 548 U.S. 53 (2006). It held that Title VII’s anti-retaliation provisions have a broader scope than its anti-discrimination provisions, and they are not limited to actions that have an objectively negative impact—e.g., firing or demotion. The actions must be “materially adverse to a reasonable employee or job applicant,” to the point that they might “dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 57.

Tropical paradise beachNew York City is home to numerous television studios and production companies, which employ thousands of actors and actresses, along with directors, producers, crew members, and others. These studios and production companies have a duty to provide a reasonably safe work environment, and to address concerns about sexual harassment and other misconduct in a prompt manner. Laws like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL) provide legal remedies for people who experience discrimination on the basis of sex, which includes sexual harassment, and other factors. The first step in asserting a sexual harassment claim is often reporting the matter to a supervisor or manager. A television production based in California recently offered an example of an internal investigation of alleged misconduct, which affected the production but did not lead to any lawsuits.

Sexual harassment is considered a form of unlawful sex discrimination under federal, state, and New York City sexual harassment laws. Quid pro quo sexual harassment involves demands for sexual activity of some sort as a condition of hiring, or in exchange for various benefits of employment. The “casting couch” archetype, in which actresses trade sexual favors for a part in a television or film production, is a classic example of this form of sexual harassment. The other form involves a hostile work environment created by pervasive and unwelcome sexual conduct in the workplace, ranging from inappropriate comments, jokes, or overtures to outright sexual assault.

In some cases, claims under Title VII or the NYCHRL are not the only claims an individual could make. In cases of unwanted touching, for example, they may also be able to assert intentional tort claims like assault, battery, and intentional infliction of emotional distress, as well as negligence-based claims like negligent hiring or supervision.

booksDespite major advances in New York sexual harassment laws, harassment continues to pervade nearly every type of workplace, affecting the lives and careers of countless people of all genders. Statutes like the New York City Human Rights Law prohibit employment discrimination on the basis of sex, which includes certain forms of sexual harassment. An essay published in early 2017 describes the author’s experience with sexual harassment in the literary world, starting with her experiences with a professor in her Master of Fine Arts (MFA) program. In educational settings, Title IX of the Education Amendments of 1972 addresses sex discrimination, including sexual harassment. The literary community presents a complicated mix of relationships between writers, editors, publishers, and others, in which sexual harassment is reportedly a frequent occurrence, but sources of legal relief are not always obvious.

Numerous statutes address sexual harassment in workplaces and schools. Disparities in power between complainants and alleged harassers are a major factor in classifying sexual harassment as sex discrimination. Courts have found that two forms of sexual harassment constitute sex discrimination under Title VII of the Civil Rights Act of 1964, the primary federal employment anti-discrimination law, as well as Title IX and other statutes. Pervasive and unwelcome conduct of a sexual nature that, in the aggregate, creates a hostile work environment is one form. The other form, known as quid pro quo sexual harassment, involves a supervisor or other person in a position of authority demanding some sort of sexual activity as a condition of hiring, continued employment, or other features or benefits of employment. Both forms of sexual harassment can have a significant impact on people who work, or are seeking to start a career, in the literary field.

In an essay published in February 2017 in the literary magazine Tin House, an author recounts numerous instances of alleged sexual harassment in her literary career. She begins with a description of “a predatory, exploitative teacher” she met in her MFA program when she was 22 years old. Her account of abusive and exploitative behavior clashes with her description of his public persona as “a much beloved and celebrated storyteller.” After she “broke free” from him and went on to a Ph.D program, she began to have similar experiences with a teacher at her new school. She states that, this time, she “[u]nmistakeably recogniz[ed]…a road I’d already been down” and reported the teacher to the administration. Their investigation reportedly concluded that his behavior was “just his way of complimenting and supporting [her],” rather than sexual harassment.
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vintage filmThe film industry might call Los Angeles home, but New York City is home to countless television and film productions, actors and actresses, producers, directors, and production workers. In late 2017, allegations of sexual harassment against a prominent Hollywood producer helped launch the #MeToo and Time’s Up movements, which aim to highlight the problem of sexual harassment in entertainment. Both actresses and actors, as well as others employed in film and television, have come forward with allegations of sexual harassment by famous actors, directors, and producers. Some of these allegations may fall under New York City sexual harassment law, provided that they involve an employer-employee relationship. Not all incidents of alleged sexual harassment in entertainment meet this requirement, however, and the same could be said for many workplace settings. Lawsuits and other claims involving alleged sexual harassment in entertainment demonstrate alternative ways of pursuing justice through the courts.

Laws like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law prohibit sex discrimination in hiring, firing, and the terms and conditions of employment. Courts have held that sexual harassment is a form of unlawful sex discrimination when employment is conditional on sexual activity of some sort, or when inappropriate sexual conduct is pervasive enough to create a hostile work environment.

The “casting couch,” which signifies some directors’ and producers’ demands for sexual activity with actresses and actors in exchange for roles, is a Hollywood cliché that remains a pervasive problem. Beyond alleged demands for sexual favors behind closed doors, a recent Washington Post article discusses how young actresses trying to start their careers are pressured into doing nude scenes. It cites research showing that, in the 100 top-grossing films released in 2016, just over one quarter of “speaking or named female characters” appeared either nude or “heavily exposed,” compared to less than 10 percent of male characters.

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