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Workplace harassment is almost always a nuisance. It is not necessarily always illegal under laws like the New York City Human Rights Law (NYCHRL). Harassment only violates the law when it is based on a protected category like race or sex, and when it directly impacts a person’s employment or the quality of the work environment. When assessing whether harassment crosses the line between a nuisance and an unlawful employment practice, New York City discrimination attorneys must carefully examine the circumstances of each case.

What Is Harassment?

The Equal Employment Opportunity Commission (EEOC), which enforces federal antidiscrimination laws like Title VII of the Civil Rights Act of 1964, defines harassment as “unwelcome conduct that is based on” a protected category. It states that harassment based on one or more of these categories becomes unlawful in two situations:
1. Quid pro quo harassment: The complainant must “endur[e] the offensive conduct” as “a condition of continued employment”; or
2. Hostile work environment: The allegedly harassing conduct is so “severe or pervasive” that it “create[s] a work environment that a reasonable person would consider intimidating, hostile, or abusive.”

If the alleged harasser is a supervisor with authority over the complainant’s employment, the employer may be held liable even if management did not know about the conduct. See Vance v. Ball State University, 570 U.S. 421 (2013). If the alleged harasser is a co-worker, customer, or other individual, the complainant must demonstrate that the employer knew about the harassment and failed to remedy it.
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A budget bill passed by the New York State Legislature in 2018, S. 7507/A. 9507, added several protections against sexual harassment for workers throughout the state. Part KK, Subpart E of the bill required the state to produce a “a model sexual harassment prevention guidance document and sexual harassment prevention policy” and “a model sexual harassment prevention training program.” The state issued these documents in November 2018. The bill requires employers to adopt the state’s model policy and use its model training program, or to develop their own policies and programs that “equal or exceed the minimum standards” established by the state. New York City passed a law in 2018, Local Law 96, that also requires employers to provide sexual harassment training.

The New York State Human Rights Law (NYSHRL) prohibits discrimination in employment on the basis of sex, sexual orientation, and other factors. N.Y. Exec. L. § 296(1)(a). The New York City Human Rights Law (NYCHRL) contains similar prohibitions, as well as express prohibitions against discrimination on the basis of gender identity and gender expression. At the federal level, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, but does not specifically mention sexual orientation or gender identity or expression. Court decisions have held that sexual harassment constitutes sex discrimination under all of these statutes.

The state released a document entitled “Sexual Harassment Policy for All Employers in New York State” in November 2018. This satisfies the state’s obligation under Part KK, Subpart E of the budget bill. The model policy states that sexual harassment may violate the NYSHRL when it is based on an individual’s actual or perceived sex, sexual orientation, gender identity or expression. It provides procedures for reporting sexual harassment. It identifies supervisors’ responsibilities when a report is made, and outlines how investigations should proceed.
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An individual may be able to bring a claim for wrongful termination against their now-former employer. New York law generally allows employers to fire employees for any reason that is not discriminatory or retaliatory. Proving wrongful termination usually requires evidence that the employer breached a contractual obligation, or that the termination violated an employment statute. When New York employment attorneys bring a claim for wrongful termination, it is often in combination with claims for discrimination or other violations of city, state, or federal law.

At-Will Employment

Employer-employee relationships in New York are considered to be “at-will employment,” unless an employment contract states otherwise. “At-will employment” allows the employer to terminate the employment arrangement at any time and for any reason, or for no reason at all, provided that the termination is not otherwise unlawful. It also allows the employee to quit at any time.

Lawful reasons for firing an at-will employee include:
– Downsizing;
– Performance issues;
– Misconduct; or
– Conflict of personalities.

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Some defendants in New York City have responded to sexual harassment lawsuits not only by denying the plaintiff’s allegations, but also by counterclaiming for defamation. This is a common-law claim alleging that a false statement has caused a person financial harm. New York City sexual harassment attorneys are familiar with many ways people have tried to prevent victims of sexual harassment from telling their stories. In some situations, the purpose of a defamation lawsuit is to prevent a person from speaking out by confronting them with significant litigation costs. This is known as a “strategic lawsuit against public participation” (SLAPP). Many states have enacted “anti-SLAPP statutes” allow motions for early dismissal of frivolous suits. Some anti-SLAPP laws provide privilege against defamation claims for statements made in connection with legal claims. New York has an anti-SLAPP statute, but it is very limited in scope.

Sexual harassment is considered a type of unlawful sex or gender discrimination under New York City’s antidiscrimination laws, such as the New York City Law Against Discrimination and Title VII of the Civil Rights Act of 1964. In order to prevail on a claim, a plaintiff must publicly allege all of the facts that they contend constitute sexual harassment. Unless a court orders otherwise, these details become part of the public record.

A claim for defamation requires proof of four elements under New York law: (1) a false statement made to a third party; (2) a lack of authorization or privilege for the statement; (3) negligence, or worse, as to the statement’s falsity; and (4) actual damage to the plaintiff. See Technovate LLC v Fanelli, 2015 NY Slip Op 51349(U). A false statement that alleges criminal activity, or that is intended to injure a person’s occupation, is considered defamation per se under New York law. Id. If the person claiming defamation is a public figure, they must prove that the defendant acted with actual malice.
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The #MeToo movement began in 2017 with a series of allegations against men in positions of power in Hollywood and has reached numerous other workplaces. Most of the allegations have been made by women against men, but sexual harassment in New York City and around the country can happen between people of any gender. Men can sexually harass men, women can sexually harass men or women, and so on. Last year, New York University (NYU) suspended a female professor after investigating allegations of sexual harassment by a male former graduate student. The student then filed a lawsuit alleging violations of the New York City Human Rights Law (NYCHRL). Reitman v. Ronell, et al, No. 157658/2018, 1st am. complaint (N.Y. Sup. Ct., N.Y. Cty., Sep. 14, 2018).

Sexual harassment is considered a form of unlawful gender discrimination under the NYCHRL and other statutes. The NYCHRL covers both workplaces and educational institutions in New York City. Our legal system generally recognizes two categories of sexual harassment. Quid pro quo sexual harassment involves a situation where someone in a position of authority makes submitting to some form of sexual activity a condition of employment, such as a supervisor who will only assign good shifts to an employee if they agree to have sex. A hostile work environment occurs when unwelcome sexual conduct, ranging from remarks or jokes to contact or assault, directly interferes with a person’s ability to do their job.

The plaintiff was a graduate student at NYU in the Department of German from 2012 until he received his Ph.D. in 2015. He states in his complaint that he turned down offers from Yale, Brown, and Stanford Universities so that he could study under the defendant, “a world-renowned academic and author.” Reitman, complaint at 3. He alleges that the defendant “created a fictitious romantic relationship between herself and her student,” and that she “asserted complete domination and control over his life, both inside and outside of his academic endeavors.” Id. at 3-4. This allegedly included “forcibly groping, touching, and kissing him on a regular basis.” Id. at 4.
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New York City pregnancy discrimination attorneys can assert claims for their clients under federal, state, and city law. Federal law specifically defines sex discrimination to include discrimination on the basis of pregnancy, childbirth, and medical conditions related to either. New York City law provides similar protections, but goes further. Employers in New York City must provide reasonable accommodations to pregnant employees, as well as those who have recently given birth. They are also prohibited from discriminating against workers based on caregiving responsibilities for minor children. In 2018, the New York City Council enacted two new laws that require employers to accommodate breastfeeding employees. They must provide employees with a location to express breast milk, as well as sufficient time to do so. This sort of accommodation is lacking in many antidiscrimination laws around the country. The Commission on Human Rights (CHR) has published guidelines on its website regarding employees’ lactation rights.

Pregnancy discrimination often takes the form of a direct adverse action on the basis of an employee’s or job applicant’s pregnancy. An employer may decide not to hire an applicant because they are pregnant or have recently given birth. They might terminate or demote an employee upon learning about a pregnancy, or compel a pregnant employee to take unpaid leave. Other acts that could constitute pregnancy discrimination include reassignment to less favorable shifts or job duties, without any reasonable relationship to the employee’s pregnancy and against the employee’s wishes.

Another approach to addressing the rights of pregnant workers involves providing accommodations that enable them to continue working. Pregnant individuals often need drink water and use the restroom more often, for example. They could be subject to lifting restrictions, or under a doctor’s instruction to avoid strenuous physical activity. With some accommodations by their employer, most pregnant workers can continue to work for a substantial portion of their pregnancy.
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A law enacted by the New York City Council, Local Law 95 of 2018, requires the city’s Commission on Human Rights (CHR) to make information available to the public about how city law addresses sexual harassment. Under the New York City Human Rights Law (NYCHRL), sexual harassment in the workplace is a form of unlawful sex discrimination. Local Law 95 requires the CHR to post information online about what constitutes sexual harassment and what remedies are available. It was enacted as part of a larger package of bills collectively known as the Stop Sexual Harassment in NYC Act. A new page went live on the CHR’s website in August 2018, shortly before the deadline set by the City Council. The page includes a wealth of information, including a notice and fact sheet summarizing city law on sexual harassment. These documents provide a helpful overview for individuals who might be considering whether to contact a New York City sexual harassment attorney.

The NYCHRL prohibits discrimination in employment on the basis of numerous factors, including gender. See N.Y.C. Admin. Code § 8-107(1)(a). The statute uses an expansive definition of “gender” that includes “actual or perceived sex, gender identity and gender expression,” and other characteristics. Id. at § 8-102. These definitions of “gender” and “gender discrimination” have a much broader scope than many antidiscrimination laws. The prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964, for example, is not expressly extended to factors like gender identity. Both statutes consider sexual harassment to be a type of sex discrimination.

The New York City Council passed Local Law 95 as Int. No. 614-A on April 11, 2018, and the mayor signed it into law on May 9. The law amended the NYCHRL by adding a new section entitled “Sexual harassment information,” codified at § 8-132. It requires the CHR to “post conspicuously on [its] website online resources about sexual harassment.” These resources must include information identifying sexual harassment as “a form of unlawful discrimination under local law,” providing examples of conduct that constitutes sexual harassment, identifying government agencies that receive complaints, describing the CHR’s complaint process, and stating that retaliation is also unlawful. The law also recommends including information on “bystander intervention education,” as well as “an interactive tool” that guides users through a CHR complaint. The effective date of the law was August 7, 2018.
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Sexual harassment in the workplace is considered to be unlawful discrimination on the basis of sex under federal, state, and city law in New York City. Employment discrimination laws in most jurisdictions do not require anti-sexual harassment training for managers, supervisors, and employees, but many regulatory agencies encourage them. The purpose of these programs is to educate both employees and management about their legal rights and obligations under antidiscrimination law. New York City is now going a step further. Under Local Law 96 of 2018, employers with fifteen or more employees will be required to conduct anti-sexual harassment trainings beginning in April 2019. This new requirement is part of a package of laws known as the Stop Sexual Harassment in NYC Act, which the mayor signed into law in May 2018.

Title VII of the Civil Rights Act and the New York City Human Rights Law (NYCHRL) both prohibit employment discrimination on the basis of sex or gender. See 42 U.S.C. § 2000e-2(a), N.Y.C. Admin. Code § 8-107(1)(a). Neither statute specifically mentions training programs in its antidiscrimination provisions. Regulations promulgated by the Equal Employment Opportunity Commission (EEOC) state that “[p]revention is the best tool for the elimination of sexual harassment.” 29 C.F.R. § 1604.11(f). The agency recommends that employers “take all steps necessary to prevent sexual harassment from occurring,” including educating employees about their rights under Title VII. Id. This implies training without specifically mentioning it.

The EEOC often includes mandatory training as part of settlement agreements in sexual harassment claims. In December 2018, for example, the agency settled a claim against a company that operates franchises of a sandwich restaurant in upstate New York. Two complainants alleged that a manager offered them jobs in exchange for sex, and did not hire them when they refused. In addition to damage payments to the complainants, the company agreed to “distribute a revised policy prohibiting sexual harassment” and “conduct anti-harassment training for managers and employees.”
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Pregnancy and caregiver discrimination can take many forms, such as firing someone upon learning of their pregnancy, denying a pregnant employee a reasonable accommodation to allow them to keep working, or denying opportunities to employees with childcare responsibilities. As New York City discrimination lawyers, we have seen near-countless examples of adverse employment actions based on pregnancy, childbirth, and caregiver duties. The New York City Human Rights Law (NYCHRL) goes further than federal law and most city and state laws in protecting workers. The city’s Commission on Human Rights (CHR) held a public hearing in January 2019 to see how it can do even better.

At the federal level, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a). It defines that term to include “pregnancy, childbirth, or related medical conditions.” Id. at § 2000e(k). The NYCHRL prohibits employment discrimination on the basis of multiple factors, including gender. N.Y.C. Admin. Code § 8-107(1)(a). It does not expressly include pregnancy or childbirth in its definition of “gender,” but it does include “gender-related characteristic[s],” which could be construed to include pregnancy and childbirth. Id. at § 8-102.

The NYCHRL goes further than Title VII in its number of protected categories, as well as the types of protection offered to pregnant workers and those who have recently given birth. Employers are required to provide reasonable accommodations to an employee based on “pregnancy, childbirth, or a related medical condition” to “allow [them] to perform the essential requisites of the job.” Id. at § 8-107(22)(a). To be considered “reasonable,” the accommodation must not “cause undue hardship” to the employer’s business. Id. at § 8-102. Amendments to the NYCHRL enacted in 2018 expand employer’s responsibilities to include accommodating breastfeeding workers’ need to express milk during work shifts.
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New York City has one of the country’s most expansive and comprehensive antidiscrimination statutes. The city government frequently looks for ways to improve employee protections against discrimination and harassment. A new campaign by the city’s Commission on Human Rights (CHR) seeks to raise awareness of issues faced by Black residents in housing, employment, and other areas. The campaign’s title, “While Black,” evokes a common saying that involves Black people receiving negative attention, or worse, for otherwise ordinary activities. “Driving while Black,” reflecting the disproportionate number of traffic stops of Black drivers, is perhaps the most famous example. As New York City discrimination attorneys, we have seen far too many examples of race-based discrimination and harassment in the workplace and elsewhere.

The New York City Human Rights Law (NYCHRL) prohibits discrimination on the basis of numerous factors, including race, in employment, housing, banking, and other areas. N.Y.C. Admin. Code § 8-107. Race is one of the core protected categories under most employment discrimination statutes. The New York State Human Rights Law and Title VII of the federal Civil Rights Act of 1964 also prohibit employment discrimination based on race. N.Y Exec. L. § 296(1)(a), 42 U.S.C. § 2000e-2(a).

While these statutes all prohibit race discrimination, they do not provide much detail on the sorts of acts that may constitute such discrimination. The regulations implementing the antidiscrimination provisions of Title VII, for example, contain an entire subchapter on national origin discrimination, 29 C.F.R. Part 1606, but nothing specifically addressing or defining race discrimination. The CHR’s campaign is intended, in part, to raise public awareness of the ways that discrimination and harassment based on race occur in New York City workplaces, public spaces, and elsewhere.
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