Penguins on icebergSexual harassment is an unlawful form of sex discrimination under employment statutes in New York City and around the country. It is often a result of an individual taking advantage of their power or authority in the workplace over a subordinate. It could take the form of demands for sexual activity of some sort as a condition of employment, or a pattern of unwanted sexual remarks or advances. In either case, the alleged harasser relies to a large extent on the alleged victim’s inability to speak out directly against the behavior. Statutes like the New York City Human Rights Law and Title VII of the Civil Rights Act of 1964 allow individuals who have experienced unlawful New York sexual harassment to file an administrative complaint, followed by a civil lawsuit. Some scenarios in which sexual harassment may occur, however, are not “workplaces” under the meaning of laws like Title VII. Sexual harassment can occur in academic settings, and Title IX of the Education Amendments of 1972 provides recourse in those situations. In late 2016, several former graduate students complained of sexual harassment by a professor. An internal investigation by the university resulted in the professor’s dismissal a year later. The story made headlines largely because the alleged harassment did not occur in a classroom or laboratory, but instead during research trips to Antarctica.

When sexual harassment occurs in an educational setting, employment anti-discrimination statutes might not apply. Title IX prohibits discrimination by certain educational institutions on the basis of sex. 20 U.S.C. § 1681(a). Federal funding is the main factor determining whether Title IX applies to a particular educational institution. A series of U.S. Supreme Court decisions have established that Title IX allows civil claims for sexual harassment by teachers, professors, or other employees against students, provided that the school administration knew about the alleged harassment and failed to take appropriate action. Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992); Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998).

The cases involving research trips to Antarctica mentioned above involved three former graduate students and the geology department chair at Boston University (BU). The complaints allege numerous acts of sexual harassment during trips to Antarctica between 1999 and 2001, when the department chair was an assistant professor. Antarctica is the fifth-largest continent in the world—larger than Europe or Australia—but because of its location at the South Pole, it is almost entirely covered with ice. It has no permanent population. The only residents temporarily inhabit scientific research stations. The continent is not under the jurisdiction of any particular nation, but any nation’s presence there is governed by international treaties. U.S. laws generally apply to Americans in Antarctica.

beer pongRecent media and public attention has helped shed light on sexual harassment in workplaces all over the country, including New York City. Employees have several means to fight back against such unlawful employment practices, but the attention to the issue since last fall has helped many employers identify and deal with individuals, policies, and practices that contribute to workplace sexual harassment. Laws like the New York City Human Rights Law (NYCHRL) allow employees to recover damages once New York City sexual harassment has occurred. The hope, of course, is that this attention will make workplace sexual harassment less common in general. Allegations of sexual harassment at a finance and technology startup company last year led to the CEO’s resignation, between the filing of two lawsuits against the company. Charles v. Social Finance, Inc., No. CGC-17-560682, complaint (Cal. Super. Ct., San Francisco Cty., Aug. 11, 2017); Zamora vs Social Finance, Inc., No. SCV-261312, complaint (Cal. Super. Ct., Sonoma Cty., Sep. 21, 2017).

In New York City, laws at the city, state, and federal levels prohibit sex discrimination in employment. Each of these statutes, while not expressly mentioning sexual harassment, has been construed to prohibit sexual harassment as part of its provisions on sex discrimination. One particular form of prohibited sexual harassment under the NYCHRL and other laws is known as “hostile work environment.” This involves a pattern of unwanted sexual behavior, ranging from remarks, comments, or jokes to overtures or actual physical contact, that is pervasive enough to interfere with a person’s ability to do their job. The behavior does not necessarily have to come from individuals in a superior workplace position to the complainant, provided that the employer knows about it but has failed to act.

The defendant in the lawsuits mentioned above is a Silicon Valley startup that provides online lending services. The company received positive coverage in the media for “stretching the definition of what a lender should do” by providing services beyond those directly related to a lender/borrower relationship. Beginning in early to mid-2017, however, stories began to emerge that showed a very different side of the company. Not at all unlike many New York City finance companies, current and former employees described an alleged “frat house culture” that included frequent sexual banter and actual sexual activity on company property.

Virtual RealityVirtual reality (VR) technology has been a feature of science fiction for some time. The technology is quickly advancing, although it has not reached the level portrayed in books and movies. Devices are now available to consumers that allow them to play VR games, both alone and with other players online. VR technology may prove to be useful in educating people about preventing sexual harassment in the workplace, and also in the recovery process for survivors of sexual assault and sexual harassment. New York City is home to numerous technology companies exploring the benefits of VR technology. Unfortunately, VR has also presented further opportunities for some people to engage in New York sexual harassment. Participants in online VR games have reported numerous instances of conduct that would meet any standard definition of sexual harassment, and even assault, if it occurred in the real world. These alleged incidents might not directly involve employment statutes dealing with sexual harassment, but they demonstrate how deeply ingrained the attitudes that often lead to sexual harassment are in our society.

Employment statutes like the New York City Human Rights Law (NYCHRL) and Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sex. This includes sexual harassment in certain situations:  when a manager or supervisor makes sexual conduct of some sort a condition of employment, and when unwanted sexual remarks and other conduct are pervasive enough to create a hostile work environment. Employers have a legal responsibility to make reasonable efforts to investigate and remedy reported sexual harassment, and they could be liable for failing to do so. These statutes could apply to sexual harassment in “virtual” settings if an individual’s job requires them to participate in VR activities. For consumers using a company’s VR services, the service provider’s legal duty is not quite as clear, but they still have responsibility for their customers’ safety.

Current VR technology involves the use of a headset that allows a user to view the virtual setting in three dimensions. The headset responds to the user’s head movements, and additional controllers might reflect the real-world movement of the user’s arms, hands, and legs. The result can be a remarkably immersive environment, which has demonstrated benefits for various types of training and education. Some employers conduct sexual harassment trainings using VR technology, based on research suggesting that people retain more information from interactive VR programs than from live speakers or videos. VR applications might also help people who have experienced sexual assault and sexual harassment deal with trauma and related issues.

University of RochesterState and federal anti-discrimination laws in New York prohibit a wide range of discriminatory acts and practices, as well as acts taken in retaliation for opposing or reporting alleged discrimination. Even if an employer is found not to be liable for overt discrimination, such as New York sexual harassment, it could still be liable for retaliation against those who complained of the alleged conduct. A university in upstate New York has been embroiled in controversy for months, beginning with multiple allegations of sexual harassment against a professor and criticism of the university’s handling of complaints. While an investigation purportedly cleared the professor of wrongdoing, a lawsuit now alleges retaliation by the university and several administrators. Aslin, et al. v. University of Rochester, et al., No. 6:17-cv-06847, complaint (W.D.N.Y., Dec. 8, 2017).

Most employment anti-discrimination statutes treat sexual harassment as a type of unlawful sex discrimination. With regard to retaliation, both Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law specifically identify retaliation as an unlawful practice. 42 U.S.C. § 2000e-3(a), N.Y. Exec. L. § 296(7). Title IX of the Education Amendments of 1972 does not specifically mention retaliation, but the U.S. Supreme Court has ruled that retaliation for reporting alleged Title IX violations is itself an intentional act of sex discrimination. 20 U.S.C. § 1681; Jackson v. Birmingham Bd. of Ed., 544 U.S. 167 (2005).

The controversy that led to the Aslin lawsuit began in September 2017, when the magazine Mother Jones reported allegations of sexual harassment by a professor at the University of Rochester (UR). A group of eight individuals, consisting of current and former professors and a former graduate student, filed a complaint with the Equal Employment Opportunity Commission (EEOC) on September 1, 2017, in which they outlined a series of alleged failures by the university to investigate the matter adequately. UR administrators stated that an internal investigation had been unable to substantiate the allegations. Toward the end of that month, UR initiated a new investigation, to be led by a former chairwoman of the Securities and Exchange Commission and the United States Attorney for the Southern District of New York.

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.

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