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

November 19, 2020

Shareholders File Suit Over Sexual Harassment of Employees in New York City

The impact of workplace sexual harassment can go far beyond the employees who endure the harassment and the employers that perpetrate or tolerate it. New York City sexual harassment attorneys focus their efforts on helping the workers who are most directly affected, but others may also have legal rights and remedies. Several recent lawsuit settlements in New York City and elsewhere demonstrate shareholders’ ability to hold corporate officers and directors accountable for permitting cultures of sexual harassment. A shareholder derivative lawsuit filed in a New York City federal court resulted in a settlement earlier this year. More recently, a major tech company settled multiple shareholder lawsuits in a California court.

Individual employees in New York City can bring claims for sexual harassment by filing a charge with an agency like the New York City Division of Human Rights or the Equal Employment Opportunity Commission. They may then be able to file suit in state or federal court. Very few lawsuits go all the way to trial. In most cases, the plaintiff and defendant reach a settlement agreement. This type of agreement rarely, if ever, includes an admission of liability by the employer. It might include a clause prohibiting the plaintiff from speaking publicly about the case and the underlying allegations. The plaintiff has obtained some relief, in the form of compensation, but it might not always feel like “justice.” Shareholders can, at times, obtain legal outcomes that are not available to current or former employees.

Section 626 of the New York Business Corporations Law allows shareholders to file suit on behalf of the corporation in certain situations. A shareholder derivative lawsuit is only possible when a corporation has failed to pursue a valid legal claim. New York law requires a plaintiff to “set forth with particularity the[ir] efforts…to secure the initiation of such action by the board or the reasons for not making such effort.” If the plaintiff succeeds in obtaining a settlement or judgment, all proceeds go to the corporation after reimbursement of the plaintiff’s expenses.

November 12, 2020

Restaurant Manager Accused of Sexual Harassment in New York City Lawsuit

by Phillips & Associates

Restaurants are regularly the site of unlawful sexual harassment all over the country and the world. New York City sexual harassment attorneys have seen countless scenarios in which managers and supervisors abuse their authority, or fail to rein in the offensive behavior of employees or customers. A lawsuit filed in September 2020 in a Manhattan state court alleges that a restaurant manager routinely harassed the plaintiff, who worked as a barista. This behavior persisted for two years, she claims, until the restaurant fired her, allegedly in retaliation for complaining. The complaint names the restaurant, its owner, and the manager as defendants.

Laws at the federal, state, and city level in New York City prohibit workplace discrimination on the basis of sex. This includes sexual harassment in situations where:
– Agreeing to sexual demands is a condition of employment, known as quid pro quo sexual harassment; and
– Unwelcome sexual remarks or behavior in the workplace are severe or pervasive enough that a reasonable person would find it offensive, known as a hostile work environment.

When someone in an executive or managerial position is the alleged harasser, the employer may be vicariously liable for their actions. Otherwise, the employer must have known, or been in a position where they should have known, about the offensive conduct, and they must have failed to make reasonable efforts to resolve the situation.

November 3, 2020

Sexual Harassment in New York City Sports

by Phillips & Associates

Sexual harassment in New York City’s film and television industry has received a great deal of attention in the past few years. That conversation has allowed people from nearly every walk of life to come forward about their own unfortunate experiences. Several recent news reports suggest that the sports world is having its own reckoning. New York City sexual harassment attorneys had a landmark victory about thirteen years ago, in a case involving the city’s professional basketball team. In 2020, allegations have come to light involving a player for the city’s Major League Soccer (MLS) team. Around the country, lawsuits and other claims have arisen in connection with both college and professional football.

Laws that prohibit discrimination on the basis of sex cover sexual harassment in certain situations, such as when unwelcome sexual conduct creates a situation that a reasonable person would find to be a hostile work environment. At the federal level, Title VII of the Civil Rights Act of 1964 protects employees against such behavior, but not everyone working in sports, or many other sectors of the entertainment industry, is an “employee” in a legal sense. Both the New York City Human Rights Law and the New York State Human Rights Law expressly extend their protections to interns. See N.Y. Exec. L. § 296-c, N.Y.C. Admin. Code § 8-107(23).

During the summer of 2020, New York City’s professional soccer team announced that it was opening an investigation into allegations of sexual harassment by a former player. The allegations came from a former intern for the team, who posted them to the social media platform Twitter. She reportedly described how she thought the internship was “the opportunity of a life time” at first, but then alleged that it turned into the player “touching me every f—ing day and my bosses thinking it was great comedic material.” The player issued a statement denying the allegations. It does not appear that the former intern has pursued formal legal action yet.

October 30, 2020

New York Legislature Passes Bill Improving Protections Against Defamation Claims in Sexual Harassment Cases

by Phillips & Associates

Filing a sexual harassment lawsuit requires putting highly unpleasant allegations on paper, and then filing them in the public record. People of all genders have felt able to come forward in the past few years with accounts of sexual harassment in the workplace and elsewhere. Some people bring legal claims, while others tell their stories to the media. A few alleged harassers have responded with legal claims of their own, often focusing on alleged falsehoods in their accusers’ stories. Parties on both sides of New York City sexual harassment claims sometimes bring defamation claims against their opponents. Defamation is a personal injury claim alleging that a defendant made a false statement about the plaintiff that resulted in financial harm. The New York Legislature passed a law this summer that targets defamation lawsuits intended not to recover damages for actual losses, but to silence people by threatening them with expensive litigation. These are often known as “strategic lawsuits against public participation, or “SLAPPs,” and they sometimes appear in response to sexual harassment claims.

A sexual harassment complaint must provide enough information about the alleged behavior to enable the court, the defendant, and others to understand the nature of the plaintiff’s claims. Sexual harassment is a type of sex discrimination under both New York and federal law. A plaintiff must demonstrate that one or more people in the workplace engaged in hostile or harassing behavior based on sex. This may include, for example, unwelcome sexual conduct or remarks that are either pervasive or severe enough that a reasonable person would find that it created a hostile work environment.

A plaintiff’s complaint must set forth the type of behavior that led to their claims. This often includes direct accusations of harassment against one or more individuals. As a case progresses, a plaintiff must continue to gather and present evidence for their claims.

October 23, 2020

Lawsuit Alleges Sexual Harassment at New York City Restaurant

by Phillips & Associates

The restaurant industry presents some of the most egregious examples of workplace sexual harassment in the country. New York City sexual harassment attorneys handle claims arising in nearly every part of the economy, so the problem is not at all limited to that industry. Restaurants seem to present many of the circumstances in which harassment often thrives. Servers may depend on supervisors to assign them good shifts, and then they depend on customers for tip income. Some restaurants foster environments where, even if servers and other employees are not overtly sexualized, sexual banter is tolerated or even encouraged. A lawsuit filed this summer in a New York City state court alleges many of the most egregious situations found in restaurant sexual harassment cases. The plaintiff’s complaint describes ongoing harassment by both employees and customers of the restaurant.

Under laws like the New York State Human Rights Law and Title VII of the Civil Rights Act of 1964, sexual harassment is considered a type of sex discrimination. The law recognizes two broad categories of sexual harassment: hostile work environment and quid pro quo harassment. A hostile work environment claim arises when unwelcome sexual conduct in the workplace is so pervasive or severe that it interferes with someone’s ability to perform their job duties. A single incident can support a hostile work environment claim if it is severe enough, although this is a difficult burden of proof to meet. Most claims alleging a hostile work environment involve ongoing verbal or physical harassment.

Quid pro quo sexual harassment occurs when an employee must give in to some sort of sexual demand as part of their job or in order to obtain a job. In the film and television business, the term “casting couch” refers to the practice of producers or directors giving a role to whoever is most agreeable to such demands. In the restaurant business, it often occurs when a manager or supervisor expects sexual favors in exchange for the best shift assignments or other perks.

October 12, 2020

Judge Rejects Mandatory Arbitration in New York Sexual Harassment Lawsuit

by Phillips & Associates

Mandatory arbitration provisions are an increasingly common feature in many kinds of contracts, including employment contracts. Arbitration is a form of alternative dispute resolution that resembles a trial in many ways. It offers certain advantages over litigation, but it is often disadvantageous for employees. New York State law does not allow employers to enforce mandatory arbitration clauses in discrimination claims, including sexual harassment. A New York City court recently denied an employer’s attempt to do exactly this. It rejected the employer’s argument that federal law preempts the New York law. This conflicts with a 2019 decision by a federal judge in the Southern District of New York, which could be an issue in the pending appeal.

Sexual harassment is considered to be a form of unlawful discrimination on the basis of sex in two situations:
1. When acquiescence to sexual demands is a condition of employment, known as quid pro quo sexual harassment; or
2. When unwelcome sexual conduct is so severe or pervasive that it creates a hostile work environment.
In 2018, the New York Legislature enacted a law, codified as § 7515 of the New York Civil Practice Law and Rules, prohibiting “mandatory arbitration to resolve any allegation or claim of discrimination” under the New York State Human Rights Law or other employment antidiscrimination statutes.

The plaintiff in the state court lawsuit filed suit in April 2019 for sexual harassment and retaliation under state and city law. She alleges that the employer, a multinational fashion and luxury goods company, “did everything it could to bury the problem,” and that it tried to “convince [her] that the harassment was just a byproduct of being an attractive woman who works at a company with a French culture, and thus should simply be tolerated.”

October 9, 2020

Guidance for New York Workers and Employers on Gender Identity Discrimination From the EEOC

by Phillips & Associates

The U.S. Supreme Court’s landmark ruling this summer in Bostock v. Clayton County, Georgia expanded Title VII’s protection against workplace discrimination to include discrimination based on sexual orientation, gender identity, and gender expression. Prior to the court’s ruling, legal protections against employment discrimination on these bases was highly inconsistent at the federal level, particularly with regard to gender identity and gender expression discrimination. New York State and New York City employment discrimination laws specifically mention these categories, but they do not appear in federal law in so many words. The Supreme Court found that Title VII’s prohibition against discrimination “on the basis of sex” necessarily includes gender identity and sexual orientation. The Equal Employment Opportunity Commission (EEOC) issued a new guidance document on “protections for LGBT workers” about two weeks after the court issued its decision. The document is rather concise, but the EEOC provides rather extensive background for the Bostock ruling elsewhere.

The Supreme Court arguably laid the foundation for the part of Bostock addressing gender identity and gender expression discrimination more than thirty years ago. Its 1989 ruling in Price Waterhouse v. Hopkins held that “sex stereotyping” constitutes sex discrimination under Title VII. The court found that the defendant employer denied the plaintiff a promotion in large part because of “her failure to conform to certain gender stereotypes.” It noted that one partner suggested that she “walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.”

In Oncale v. Sundowner Offshore Services, Inc., decided in 1998, the Supreme Court held that sexual harassment among members of the same sex may violate Title VII. Many of the plaintiff’s co-workers harassed him with homophobic slurs. The court ruled that the harassment need not be “motivated by sexual desire” to be actionable under Title VII. The ruling established the possibility of claims for discrimination based on someone’s perceived sexual orientation.

September 30, 2020

New York Attorney General Obtains $1.5 Million Settlement for Female Construction Workers Who Alleged Sexual Harassment

by Phillips & Associates

Sexual harassment occurs whenever someone abuses their authority in the workplace to try to coerce someone into some kind of sexual activity, or whenever one or more people subject someone to an unwelcome and hostile work environment based on sex. New York City sexual harassment attorneys routinely bring lawsuits on behalf of workers who have experienced these types of misconduct. The New York Attorney General (AG) is also taking a role in fighting against workplace sexual harassment under state, federal, and city law. The AG’s office announced this summer that it had concluded an investigation into allegations of sexual harassment and retaliation at a Long Island construction company. It also stated that it had reached a settlement agreement with the company, in which the company will pay $1.5 million in damages.

A legal claim for sexual harassment can arise from specific acts or patterns of conduct by individual employees, as well as from systemic failures by an employer that allow sexual harassment to persist in a workplace. Claims alleging a hostile work environment often require proof not only that an employee faced unwelcome conduct of a sexual nature that was either pervasive or severe, but also that the employer knew or should have known about the problematic behavior and failed to take reasonable actions to address it.

Since October 2018, state law has required employers to provide sexual harassment prevention training for all of their employees. Employers may use a model training program developed by the state, or they can use their own as long as it meets certain minimum standards.

September 24, 2020

New York City Restaurant Settles Sexual Harassment Lawsuit Filed by EEOC

by Phillips & Associates

Sexual harassment remains a problem in workplaces throughout the country and the world. As New York City sexual harassment attorneys, we have seen how it can affect every kind of workplace in the city. People with supervisory or managerial authority may decide to abuse their power against workers who may fear standing up for their rights. Many complaints of sexual harassment appear in the restaurant industry, where supervisors have authority over employee schedules, and employees often compete with each other for shifts and tips. The Equal Employment Opportunity Commission (EEOC) recently announced that it had settled a sexual harassment lawsuit against a company that operates a chain of restaurants in the city.

Title VII of the Civil Rights of 1964 prohibits employment discrimination on the basis of sex and certain other factors. Under a series of decisions by the U.S. Supreme Court and other courts, sexual harassment violates Title VII’s sex discrimination provisions in two situations:
1. Quid pro quo sexual harassment occurs when an employee is expected to submit to sexual demands in some form as a condition of getting a job, keeping a job, or obtaining favorable employment conditions. In the restaurant industry, a supervisor with authority over shift schedules who demands sexual favors in exchange for the best assignments has committed quid pro quo sexual harassment.
2. A hostile work environment occurs when unwelcome sexual conduct in the workplace is so severe or pervasive that it interferes with a person’s ability to do their job, and any reasonable person would find the situation to be objectively “hostile.” A restaurant that routinely tolerates sexual banter, especially if this occurs over the objections of some employees, could be considered a hostile work environment.

The EEOC filed suit in May 2019 against several companies that operate a chain of restaurants in New York City. The complaint, filed on behalf of a former manager at one of the restaurants, alleged multiple acts of harassment by at least two upper-level managers. This conduct, the complaint alleged, occurred at all of the restaurant locations, as well as during and after the charging party and other employees lodged complaints about the behavior.

September 15, 2020

Sexual Harassment in the Video Game Industry Gains Attention in New York and Elsewhere

by Phillips & Associates

Almost three years ago, the #MeToo movement began widespread exposure of sexual harassment in the entertainment industry. This expanded to include nearly every other industry in the country, but much of the focus has remained on the film and television businesses. New York City sexual harassment attorneys have extensive experience representing clients in claims for sexual harassment on Wall Street, in television and theater productions, and elsewhere. In the summer of 2020, sexual harassment in the video game industry began to gain greater attention. This could partly be because of the COVID-19 pandemic — as more people stay at home to prevent the spread of the disease, many of them have turned to video games. This has directed more attention not only to the game development companies, but also the competitive side of gaming, commonly known as “esports,” and livestreams hosted by gamers. A June 2020 New York Times report describes widespread allegations of sexual harassment in these parts of the industry.

Most laws that directly address sexual harassment apply specifically to workplaces and employment relationships. Under these laws, sexual harassment is considered to be unlawful discrimination on the basis of sex or gender. This often involves harassment by a supervisor or manager. It could also involve one or more coworkers, clients, customers, or other individuals in situations where the employer knows about the harassment, but fails to act.

As we know from #MeToo, sexual harassment can occur in situations where no direct employment relationship exists. The now-archetypal example, of course, is that of the film producer who demands sexual activity from someone with the accompanying threat — express or implied — to their career prospects if they say no. In those situations, other laws may support a legal claim for sexual harassment, aiding and abetting sexual harassment, or failing to intervene to prevent sexual harassment. This might include claims for negligence or intentional torts, as well as claims based on breach of contract.