Fox News ChannelA major cable news network based in New York City has faced multiple allegations of sexual harassment by both behind-the-scenes staffers and on-screen personalities, beginning in mid-2016. The lawsuits and other allegations have led to millions of dollars in settlements and the ouster of the chief executive officer and at least two hosts. The multitude of allegations covers a wide range of alleged actions that could lead to a New York sexual harassment claim.

Laws like the New York City Law Against Discrimination prohibit discrimination on the basis of sex and other factors. Sex discrimination includes sexual harassment, which can range from inappropriate sexual comments to outright sexual assault. A single act can support a claim of sexual harassment if it is severe enough. Acts that might seem minor when viewed in isolation can support a claim if they form a pattern of similar behavior. A company can be directly liable for sexual harassment by a manager, supervisor, or other person in a position of authority over a claimant. If a co-worker or other person in the workplace is the alleged perpetrator, the employer may be liable if it was made aware of the harassment but failed to act.

The sexual harassment allegations center on Fox News and its former CEO, the late Roger Ailes. In the summer of 2016, numerous women came forward with allegations of sexual harassment by Ailes and others. One former employee described the harassment as “psychological torture” but stated that she endured it because she believed it was necessary to continue in her career. After a prominent female host filed a sexual harassment lawsuit against Ailes in July 2016, at least six more women soon came forward with allegations against him. Ailes resigned as CEO of the network later that month. He died in May 2017.

Pride Flag mapEmployment discrimination based on gender identity or gender expression remains an uncertain legal matter in many parts of the country, with many seemingly contradictory interpretations of existing law. Federal law does not expressly recognize gender identity and gender expression as protected categories, but the Equal Employment Opportunity Commission (EEOC) has interpreted the prohibitions on sex discrimination in Title VII of the Civil Rights Act of 1964 to include gender identity and expression. The Department of Justice (DOJ), on the other hand, has recently changed its position to the view that Title VII does not apply to these categories. New York gender identity discrimination law protects transgender workers from discrimination at the state level, as well as in many municipalities. A lawsuit filed earlier this year by a transgender woman in a Michigan state court appears to be seeking to apply the EEOC’s position to state law, arguing that sex discrimination inherently includes gender identity and expression. Reed v. McDonald’s Corp., et al., No. 17-007889-CD, complaint (Mich. Cir. Ct., Wayne Cty., May 25, 2017).

The New York State Human Rights Law prohibits employment discrimination on the basis of “sex,” while the New York City Human Rights Law covers discrimination based on “gender.” N.Y. Exec. L. § 296(1)(a), N.Y.C. Admin. Code § 8-107(1)(a). Both statutes define these terms to include gender identity, including when that identity does not match the gender assigned to an individual at birth, and gender expression. 9 CRR-NY 466.13(c), N.Y.C. Admin. Code § 8-102(23).

Federal employment discrimination law does not expressly include gender identity or gender expression in its definition of “sex.” The EEOC, however, has interpreted Title VII as applying to discrimination based on transgender status, citing court opinions regarding stereotypes about sex and gender. See, e.g., Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (Apr. 20, 2012). This interpretation of Title VII now conflicts with the DOJ’s view of the statute. Attorney General Eric Holder issued a memorandum in December 2014 directing U.S. Attorneys and DOJ agency heads to apply a similar reading of Title VII to the EEOC. This interpretation was revoked in a memo issued on October 4, 2017.

Martini GlassAnnual holiday parties are supposed to be a time to relax and socialize with co-workers. Unfortunately, this is not the experience of many people. The relaxed environment, combined with the presence of alcohol, increases the likelihood that a co-worker might act illegally or inappropriately, even veering into the territory of sexual harassment. For non-supervisory employees, conduct at work-sponsored holiday parties can contribute to a hostile work environment, which is a type of New York sexual harassment. This unfortunate experience is mirrored in a lawsuit filed by a former Beacon Hotel employee in New York.

The plaintiff attended her company’s holiday party. During the party, her supervisor, a senior manager, invited her and other employees to a spa to get massages. Her supervisor allegedly flashed his genitals at the plaintiff and other employees, which the plaintiff found offensive. Later, the plaintiff and other employees allegedly went into a hot tub, where her supervisor made advances toward her and fondled her. Each time this happened, the plaintiff allegedly rejected his advances.

When the plaintiff returned to work, she alleges that her senior manager became hypercritical of her work performance and treated her differently from her male co-workers. For instance, the plaintiff was written up when she was 10-15 minutes late, but her supervisor did not do the same for male employees who came to work late. The plaintiff was terminated from employment, even though, prior to the alleged holiday party harassment, she received acceptable to excellent job performance reviews.

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Gender identity and gender expression are not specifically identified as protected categories in federal anti-discrimination law. New York City’s employment anti-discrimination statute includes both gender identity and gender expression, making it one of the most extensive such laws in the country. Despite a variety of recent setbacks at the federal level, caselaw has been gradually developing in a direction that offers some hope for the view that gender identity and gender expression are already protected by federal prohibitions on sex discrimination. A U.S. Supreme Court decision finding that Title VII of the Civil Rights Act of 1964 prohibits “sex stereotyping” could provide a basis for claims based on gender identity and expression. A New York gender discrimination case filed in a Manhattan federal court seeks confirmation of an arbitration award finding sex discrimination, based in part on sex stereotyping. Berger v. Kargo Global, Inc., No. 1:17-cv-04288, petition (S.D.N.Y., Jun. 8, 2017).

Housewife cartoonTitle VII states that it is “an unlawful employment practice” to discriminate against an employee or job applicant “because of…sex” or other factors. 42 U.S.C. § 2000e-2(a). The definition of “because of sex” has expanded over the years, through both legislation and court decisions, to include more specific acts like sexual harassment and pregnancy discrimination. See, e.g. id. at § 2000e(k). The Supreme Court has also held that sex discrimination under Title VII includes discrimination on the basis of stereotypes about how members of a particular gender should, or should not, behave. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Justice Brennan, writing for the majority in Price Waterhouse, offered the example of “[a]n employer who objects to aggressiveness in women” but who “require[s] this trait” in employees. Id. at 251. This would put female employees “in an intolerable and impermissible Catch-22,” since they would risk losing their job no matter what they do. Id. Subsequent court decisions have indicated that unlawful sex stereotyping can involve both female employees deemed insufficiently feminine and male employees deemed insufficiently masculine. This analysis could also apply to transgender and gender-nonconforming employees, although no clear legal precedent currently exists.

trainingThe Equal Employment Opportunity Commission (EEOC) is the federal agency charged with enforcing various employment statutes, including the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. In addition to the statutory language of Title VII and the court decisions interpreting it, the EEOC has developed its own regulations and guidelines regarding investigation and enforcement. The agency’s guidelines regarding harassment currently date from the 1990s, but it released proposed revisions to those guidelines earlier this year. It does not appear that the agency has adopted the new guidelines, but they offer a useful look at its priorities regarding harassment and discrimination, including New York City sexual harassment situations.

Title VII prohibits discrimination in employment on the basis of several factors, including sex. Amendments to the statute and Supreme Court decisions have expanded Title VII’s definition of “sex discrimination” to include a wide range of acts, including pregnancy discrimination, sex stereotyping, and sexual harassment. An employer violates Title VII when an executive, manager, or supervisor harasses an employee because of their sex, such as by making inappropriate remarks or demands of a sexual nature, or when an employer knows that such conduct is occurring between coworkers but fails to take reasonable action to remedy the situation.

The EEOC’s “Policy Guidance on Current Issues of Sexual Harassment” was issued on March 19, 1990. The agency first identified sexual harassment as a violation of Title VII in 1980, six years before the Supreme Court recognized it as such in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The purpose of the 1990 guidance documents was to build on the agency’s definition of sexual harassment in light of Vinson. The document addressed several specific questions, including how to determine when sexual conduct is “unwelcome” and whether a work environment is “hostile.”

New YorkSexual harassment in the workplace is unlawful in New York City under multiple anti-discrimination statutes. Multiple court decisions have held that prohibitions on sex discrimination include sexual harassment. Aggrieved employees can assert their rights before regulatory agencies at the city, state, or federal levels, or they can take their claims to state or federal court. A lawsuit filed in a state-level court in Manhattan earlier this year illustrates many of the types of claims seen in New York City sexual harassment cases. Green v. Exusia, Inc., et al., No. 151989/2017, complaint (N.Y. Sup. Ct., N.Y. Cty., Mar. 1, 2017). The complaint asserts causes of action for discrimination and retaliation under city and state laws, and it seeks monetary damages, declaratory judgment, and injunctive relief.

The New York City Human Rights Law (NYCHRL) is one of the most comprehensive anti-discrimination statutes in the country, offering protection against discrimination and harassment on the basis of a wide range of categories, including gender. N.Y.C. Admin. Code § 8-107(1)(a). It defines “gender” to include not only a person’s “actual or perceived sex” but also factors like gender identity and gender expression. Id. at § 8-102(23). The New York State Human Rights Law (NYSHRL), while not as far-reaching as the NYCHRL, offers protection against employment discrimination on the basis of sex. N.Y. Exec. L. § 296(1)(a).

The plaintiff in Green began working for the defendant, described in the complaint as “a rapidly growing data and information management consulting firm,” in November 2015. Green, complaint at 1. The job involved “working directly with [the company’s] Chairman, President, and Chief Executive Officer,” who is also individually named as a defendant. Id. The plaintiff’s experience as an employee, she alleges, was “marred by [the individual defendant’s] sexual desires and offensive conduct.” Id.

Transit SignIn New York City, multiple employment statutes protect employees from sexual harassment and other practices in the workplace. An archetypal example of workplace sexual harassment might involve a supervisor who demands some sort of sexual activity of a subordinate as a condition of hiring or continued employment. Another classic example involves sexual jokes, remarks, or other conduct that renders the workplace intolerable for the complainant, commonly known as “hostile work environment.” The laws dealing with sexual harassment arose, in large part, from complaints by female employees about actions by male supervisors, but unlawful sexual harassment is not limited to acts perpetrated by men against women. A complaint filed earlier this year with the New York City Commission on Human Rights (CHR), for example, alleges that a female chief executive officer subjected female employees to inappropriate sexual remarks and behavior in the office.

Sex discrimination in employment is unlawful under New York City law, New York state law, and federal law. The New York City Human Rights Law (NYCHRL) prohibits “discriminat[ing] in compensation or in terms, conditions or privileges of employment” on the basis of gender and other factors. N.Y.C. Admin. Code § 8-107(1)(a)(3). The U.S. Supreme Court first recognized sexual harassment as a form of unlawful sex discrimination in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The court held that federal anti-discrimination law was not limited to “tangible, economic barriers erected by discrimination,” but instead it was “inten[ded] to strike at the entire spectrum of disparate treatment of men and women in employment.” Id. at 64 [internal citations omitted].

The scenario presented in Meritor involved a female employee’s claim of a hostile work environment created by the actions of a male supervisor. Courts have since expanded the legal concept of sexual harassment to include numerous other dynamics. Another landmark decision, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), found that a male employee could bring a claim for sexual harassment based on conduct by male co-workers. The plaintiff worked on an offshore oil platform in the Gulf of Mexico, where co-workers “forcibly subjected [him] to sex-related, humiliating actions,” largely based on perceptions of his sexual orientation. Id. at 77. Justice Scalia, writing for a unanimous court, noted that “male-on-male sexual harassment…was assuredly not the principal evil Congress was concerned with,” but it is a “reasonably comparable evil[]” covered by federal law. Id. at 79.

Golden Gate BridgeSexual harassment in the workplace violates federal anti-discrimination laws, as well as many state statutes and city ordinances. An individual seeking to assert a claim for sexual harassment, hostile work environment, or similar claims must decide which statute or statutes to cite. The choice of law can be a complicated issue, and it can depend on both legal and geographic factors. Fortunately for many or most workers alleging employment discrimination in New York City, the New York City Human Rights Law (NYCHRL) offers some of the broadest protections of any law in the country. State law in New York is less expansive but still more comprehensive than federal law. A lawsuit currently pending in a state court in California, Scott v. Upload, Inc., et al., No. CGC-17-558730, complaint (Cal. Super. Ct., San Francisco Cty., May 8, 2017), offers a view of how state laws dealing with sexual harassment can differ from one another. It also illustrates how allegations of sexual harassment can affect an entire industry. Much like New York City’s financial sector, the tech industry in Northern California seems to produce an ongoing series of sexual harassment lawsuits.

The main anti-discrimination statute covering the entire United States is Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). At the state level, the New York State Human Rights Law includes additional factors like marital status and sexual orientation. N.Y. Exec. L. § 296(1)(a). Multiple Supreme Court and New York court decisions have established that sexual harassment constitutes unlawful sex discrimination. The Scott lawsuit cites the California Fair Employment and Housing Act (FEHA) in support of its claims. The FEHA goes a step further than both Title VII and the NYSHRL by codifying harassment and a failure by an employer to prevent harassment as distinct unlawful acts. Cal. Gov’t Code § 12940(j).

The plaintiff in Scott worked for the defendant, a technology company based in San Francisco, from May 2016 to March 2017 as the “Director of Digital and Social Media.” Scott, complaint at 3. She identifies two individuals as co-founders and executives of the defendant, and she alleges that they “expressly referred to the company as a ‘boy’s club.’” Id. at 4. Male employees allegedly spoke openly in the office about their “sexual exploits,” id., and made overt sexual comments about female employees in their presence. Sexually charged dialogue also “permeated work emails,” according to the plaintiff. She further alleges that “male employees engaged in explicit sexual conduct in the office” in her and other female employees’ presence. Id. at 5. Shortly after complaining about this alleged conduct, the plaintiff was terminated.

Coworking SpaceSaying that the modern workplace is changing is something of a cliché, but new and innovative work environments are a daily reality for many people. New ideas inevitably bring new challenges, particularly in regard to the way employees interact with their employers and their colleagues. “Coworking” is a relatively recent development in many cities, including New York. Employment laws may not be equipped for some of the challenges these spaces can present. In a coworking space, people engaged in different businesses share a workspace. A few recent news reports and lawsuits have alleged sexual harassment in coworking spaces, illustrating some of the challenges this workplace model can present.

In order to assert a claim for New York City sexual harassment or other types of unlawful employment discrimination, a claimant must be able to establish an employment relationship. The law does not provide a specific definition of this relationship, although terms like “employer” and “employee” can have varying definitions, depending on the statute in question. An employer only meets the definition of that term under Title VII of the Civil Rights Act of 1964, for example, if it has “fifteen or more employees.” 42 U.S.C. § 2000e(b). The New York City Human Rights Law (NYCHRL) does not define “employment” or other related terms. None of these statutes offers an easy idea of how they apply to the types of interactions commonly found in coworking spaces.

At this point, it would be helpful to define “coworking.” The fundamental element of coworking is a shared office space that members can use on a daily basis. For small businesses, coworking offers inexpensive office space, often with a receptionist and other amenities. Some coworking businesses allow small businesses to rent dedicated offices, desks, or tables. Individual coworkers might include freelancers and people who work remotely from their employers, who want workspace with reliable wifi service, free coffee, and the company of other people who work in similar fields. Those are some of the benefits. The potential drawbacks include a lack of clear lines of communication and accountability if sexual harassment or other misconduct occurs.

A state appeals court revived a New York gender discrimination claim against the owners of a local wellness clinic. In addition to being co-owners, the defendants were husband and wife. One of the defendants, the husband, hired the plaintiff as a yoga instructor and massage therapist and acted as her direct supervisor. The plaintiff and her supervisor maintained a professional relationship over the course of her employment; however, her supervisor disclosed that his wife (and the co-owner of the clinic) might get jealous of the plaintiff because she was “too cute.”

Yoga pose

Months later, the plaintiff received threatening text messages from her supervisor’s wife. The messages stated that the plaintiff was not welcome at the clinic any longer and that she should stay away from her husband and her family. On the next morning, the plaintiff received an email from her supervisor, notifying her that her employment was terminated and that he would call the police if she returned to the office.

The plaintiff filed a lawsuit in New York state court, alleging gender discrimination under the New York State Human Rights Law and the New York City Human Rights Law. Under these laws, employers are prohibited from taking an adverse employment action against an employee when motivated by reasons related to the employee’s sex or gender, including, as the plaintiff argued, sexual attraction.

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