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The past few years have brought many accounts of sex discrimination, frequently including sexual harassment, in the media, entertainment, and tech industries. New York City sexual harassment attorneys often hear about sexual harassment in these workplaces. We are familiar with the way some media and tech companies can foster work environments that either allow or ignore sexual harassment. Companies in both tech and entertainment have been described as “boys’ clubs,” with work environments that significantly disadvantage and exclude women. A prominent video game company recently announced that it has settled a putative class action brought by current and former female employees alleging widespread sexual harassment, among other claims. The settlement includes $10 million in damages to be paid to class members.

Sexual harassment constitutes an unlawful form of sex discrimination under laws like the New York City Human Rights Law in two types of scenarios. Quid pro quo sexual harassment occurs when a supervisor or manager demands sexual activity or contact in exchange for getting a job, keeping a job, or obtaining some other sort of employment-related benefit. The “casting couch” is a well-known example, in which an individual auditioning for a role is expected to have sex, or something similar, with a director or producer in order to get the part. Another example involves a restaurant manager who only gives the best shift assignments to servers who submit to sexual demands.

The other scenario in the legal definition of sexual harassment occurs when pervasive, unwelcome conduct of a sexual nature creates a hostile work environment. A single incident can support a hostile work environment if it is severe enough. Most hostile work environment claims involve multiple acts, such as ongoing remarks or jokes of a sexual nature, which a reasonable person would expect to cause offense and interfere with a professional workplace.

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Legal protections for workers who are transgender or gender-nonconforming are, at best, a patchwork around the country. New York City gender identity discrimination attorneys can choose between city and state law when preparing a claim for gender identity or gender expression discrimination. In places where people must rely on federal law, their options may be less clear. An executive order (EO) issued during the Obama administration extended legal protections against gender identity discrimination to civilian government employees and employees of government contractors. That EO remains in effect, but the new administration has chipped away at its protections. This includes both substantive law and publicly available information. A report published in November 2019 by the Web Integrity Project (WIP) examines how the administration has removed information about LGBTQ legal protections from government websites, even when those legal protections remain in place.

The Equal Employment Opportunity Commission (EEOC) ruled in 2012 that the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 covers gender identity and gender expression. The agency cited precedent recognizing “sex stereotyping” as a type of sex discrimination, and found that discrimination on the basis of a complainant’s gender identity was discrimination based on her sex. Most federal courts have not reached this conclusion. The U.S. Supreme Court is expected to rule on the question in 2020.

President Obama issued EO 13672 on July 21, 2014. The order amended two earlier EOs. EO 11246, signed by President Johnson in 1965, established rules against discrimination by employers that contract with the federal government. EO 11478, signed by President Nixon in 1969, addressed discrimination in the federal civilian workforce. EO 13672 added gender identity protections to both of the earlier EOs. Various executive agencies implemented the new EO over the following months. See, e.g. 79 Fed. Reg. 72985 (Dec. 9, 2014), 41 C.F.R. § 60-1.1 et seq.

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As the holiday season swings into full gear, many employees and employers will face issues that may arise at company holiday parties. These parties are often designed to celebrate a successful year and reward employees for their dedication and hard work. However, the nature of these events often leads individuals to lower their inhibitions and potentially engage in unacceptable and offensive behavior. New York employees facing such discrimination at these office events should contact a New York employment discrimination attorney to address their claims.

Both New York and federal laws that protect against employment discrimination extend to off-hours and off-site work events. Additionally, employers should take precautionary steps by advising their employees on acceptable workplace behavior. However, despite the training, education, and risk of termination, employers and co-workers still engage in this unlawful behavior.

In addition to federal protections covering race, color, religion, national origin, sex, disability, age, citizenship status, and genetic information, New York City law prohibits qualified employers from discriminating against an employee based on their creed, actual or perceived age, marital or partnership status, pregnancy, military status, or caregiver status. Additional protections exist covering criminal and arrest history, sex offenders, and domestic violence victims. The federal protections apply to employers with more than 15 employees, and New York City protections apply to employers with more than four employees. Claims regarding sexual harassment do not have an employee minimum.

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Many New York employers are recognizing the importance of flexibility, camaraderie, and team building in developing a reliable and robust workforce. To meet these goals, many employers organize office retreats, family events, and annual holiday parties. However, these events, especially ones including alcohol, can lead to unwanted sexual harassment. Employees who suffer sexual harassment by their New York employer should understand their rights and remedies. Individuals who suffer sexual harassment by their employer or at their workplace should contact a New York sexual harassment attorney to discuss potential recourses.

According to a recent news report, research indicates that over half of companies throwing holiday and end-of-the-year parties will serve alcohol, a five percent increase from 2017. Moreover, studies show that serving alcohol increases the risk of workplace sexual harassment. Employers should take steps to mitigate the risk of unwanted sexual advances and harassment by educating their employees on appropriate standards of behavior and consent.

New York employees who do suffer sexual harassment at an off-site or off-work hours event may still hold their company liable for their harm. Typically, employees understand what constitutes sexual harassment in an office setting, but after-hours harassment may not be as clear. New York law defines sexual harassment as any unwanted sexual advances. These advances can be verbal, physical, or sexual. Some typical example of sexual harassment at a holiday party may include:

  • Inappropriately commenting on a co-worker’s body or attire
  • Coercing someone to drink to lower their inhibitions
  • Attempting to kiss or grope a co-worker
  • Making off-color sexual jokes

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New York City sex discrimination attorneys probably have more tools available to help their clients than lawyers in other American cities. The New York City Human Rights Law (NYCHRL) prohibits workplace discrimination based on an extensive list of factors. State law in New York comes close to providing the extent of protection offered by city law. Both city and state law are far ahead of federal law. A 2016 amendment to the NYCHRL added “caregiver status” to the list of protected categories. See N.Y.C. Admin. Code § 8-107(1)(a). This applies to workers who, in addition to their job duties, must provide ongoing care for certain individuals. Federal law does not expressly protect caregiver status, but a 2004 decision by the Second Circuit Court of Appeals in New York shows how the prohibition on sex discrimination could cover certain forms of caregiver status.

Caregiver Discrimination in New York City

The NYCHRL defines “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” Id. at § 8-102. The statute goes on to define “care recipient” using additional terms that require definitions. We will focus here on the law’s applicability to people with caregiving responsibilities for minor children. The fact that New York City’s caregiver discrimination broadly applies to parents sometimes gets overlooked.

Sex Stereotyping under Title VII

Title VII of the Civil Rights Act of 1964 bars employers from discriminating on the basis of sex, but aside from “pregnancy, childbirth, or related medical conditions,” it does not define the term “sex.” 42 U.S.C. §§ 2000e(k), 2000e-2(a). The U.S. Supreme Court has offered further definitions of sex discrimination under Title VII, including various forms of sexual harassment.

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A time-tested way to diminish a woman’s authority in the workplace is to allege that she only attained her position through sexual favors, also known as “sleeping her way to the top.” This trope has probably been around for as long as women have existed in spaces perceived to belong to men. Unfortunately, that still describes many workplaces in 2019. Earlier this year, a federal appellate court considered a case in which a woman alleged that co-workers started a false rumor about her in this vein. The court ruled that an employer could be liable in this scenario under Title VII of the Civil Rights Act of 1964. New York City sexual harassment attorneys should take note of the court’s discussion of workplace rumor.

Title VII identifies two categories of sexual harassment as unlawful sex discrimination. Quid pro quo sexual harassment occurs when submitting to sexual activity of some sort is a condition of obtaining or keeping a job, or of obtaining various employment benefits. A hostile work environment occurs when unwelcome sexual remarks or conduct renders the workplace objectively intolerable.

The “slept her way to the top” trope combines both types of unlawful sexual harassment. First, it flips the quid pro quo scenario. Instead of a male supervisor or manager demanding sexual favors in exchange for a promotion or some other employment benefits, it alleges that a female employee offers sexual favors. Second, the effect of “slept her way to the top” rumors often take the form of a hostile work environment. For some reason—i.e. sexism or misogyny—the trope generally only views the woman as being in the wrong. The male supervisor or manager never seems to be faulted for allegedly agreeing to provide employment benefits for sex.

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In order to assert a claim under New York City sexual harassment laws, a plaintiff must usually demonstrate that an employment relationship existed between the plaintiff and the defendant. When the plaintiff and the alleged harasser received paychecks from the same entity, establishing this relationship is straightforward. Many workplaces present a much more complicated picture, though. Businesses often use a complex system of outsourcing through contractors in an effort to cut costs. This can cause confusion with regard to liability. New York courts, fortunately, have ruled that the definition of “employer” is not very strict in claims under Title VII of the Civil Rights Act of 1964, which governs many New York City sexual harassment claims.

Employers may be liable for third-party sexual harassment, meaning harassment against an employee by someone other than a fellow employee, such as a contractor, customer, or client. If the employer was aware that harassment was occurring, and they failed to take reasonable actions to prevent it or remedy the situation, they may be held liable under Title VII. This is similar to the standard for a hostile work environment created by a co-worker or another employee who is not in a position of authority over a plaintiff. The alleged harasser might not have direct control over the plaintiff’s employment, but they still have the power to make the workplace unbearable.

A 1981 decision by the U.S. District Court for the Southern District of New York (SDNY) addressed this type of situation. The plaintiff was employed by a company that had a contract to provide property management services at a Manhattan office building, although there was some confusion as to the exact employment relationship. She worked as a lobby attendant, which partly involved “offer[ing] assistance and information to people entering the building and k[eeping] those who did not belong in the building from loitering.”

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Anti-discrimination laws treat sexual harassment in the workplace as a form of sex or gender discrimination. In order for these laws to apply, the alleged acts must occur in a workplace in the context of an employment relationship. The #MeToo and #TimesUp movements largely began in the entertainment business, in which employment relationships are rarely as certain as this. A lawsuit filed in October 2019 illustrates an area of uncertainty in sexual harassment law. The plaintiffs are former students at a now-closed acting school that had locations in Los Angeles and New York City. New York sexual harassment attorneys must demonstrate an employment relationship in most circumstances, although state law covers some situations in which no direct employer-employee relationship exists. The lawsuit takes advantage of a provision in California law that directly addresses the entertainment business.

Quid pro quo sexual harassment occurs when submission to some sort of sexual activity is a condition of getting or keeping a job. Some clearly inappropriate situations, however, might not quite fit this description. With the allegations against the Hollywood producer that kicked off #MeToo, for example, submitting to his alleged sexual demands was often a sort of gatekeeping, and not necessarily about getting cast in a specific film. California has enacted a law that directly addresses this kind of situation.

A person in California may be liable for sexual harassment when they are purportedly in a position of authority or power over a plaintiff, such as a “director or producer.” Cal. Civ. Code § 51.9(a)(1)(H). The plaintiff must also prove sexual advances or demands, or hostile and unwelcome sexual remarks or conduct, along with economic loss or personal injury. Id. at §§ 51.9(a)(2) – (3). The New York State Human Rights Law allows non-employees to claim sexual harassment in a workplace when they are present in a position like contractor, subcontractor, or consultant. N.Y. Exec. L. § 296-D. This may cover many of the same situations, even if it does not specifically mention roles like director or producer.

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The New York Legislature enacted multiple measures last year addressing workplace sexual harassment. The governor signed them all into law as part of the budget bill in April 2018. One section requires employers to adopt a sexual harassment prevention policy and provide training to their employees. The bill gave them until October 9, 2018 to adopt a policy, which could be the model policy developed by the state, or a policy that meets the new law’s standards. The required training must be provided annually, which means that October 9, 2019 was the statewide deadline by which all employers must have conducted their first training. According to various news reports, not everyone met the deadline. This comes as little surprise to New York City sexual harassment lawyers, of course, but it is worth noting once again how antidiscrimination laws require constant attention and vigilance.

The New York State Human Rights Law (NYSHRL) prohibits employment discrimination on the basis of sex. N.Y. Exec. L. § 296(1)(a). Decades of caselaw have held that sexual harassment is a type of sex discrimination under the NYSHRL and similar statutes. A recent amendment to the NYSHRL expanded the law’s coverage in sexual harassment cases. While the law usually only applies to employers with at least four employees, it applies to all employers in the state for sexual harassment claims. Id. at § 292(5).

Part KK of the 2019 budget bill contains multiple new measures related to sexual harassment. Subpart E added a new section to the Labor Law entitled “Prevention of Sexual Harassment.” N.Y. Lab. L. § 201-G. This section directed the state to create a model sexual harassment prevention policy, and required employers to adopt this policy or a similar one by October 9, 2018.

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The restaurant industry is very familiar to New York City sexual harassment attorneys. The business model and managerial structure of many restaurants might never have been intended to foster multiple forms of sexual harassment, but that is exactly what happens far too often. Competition for shift assignments can lead unscrupulous supervisors and managers to take advantage of the power their positions give them. Reliance on tips can make servers hesitate to report or otherwise call out harassment. Behavior that creates a hostile work environment can go unchallenged as a result. Thankfully, many people are standing up for their rights. The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing antidiscrimination law, recently filed a lawsuit on behalf of several women alleging sexual harassment by a chef at a restaurant in Upstate New York.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of sex and several other factors. 42 U.S.C. § 2000e-2(a). The EEOC recognized sexual harassment as a form of sex discrimination in violation of Title VII in the early 1980s. Court decisions and administrative rulings have expanded the legal definition of sexual harassment over the years.

Federal law now recognizes two general categories of sexual harassment. 29 C.F.R. § 1604.11(a). Quid pro quo sexual harassment occurs when giving in to unwelcome demands for some sort of sexual activity is made a condition of someone’s employment or is the basis for employment decisions, including hiring and firing. A hostile work environment occurs when pervasive and unwelcome sexual conduct prevents a person from doing their job.

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