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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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Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, including sexual harassment, in employment throughout the country, including New York City. Sexual harassment is not limited to the workplace, and Title VII is not the only federal statute that views sexual harassment as unlawful discrimination. Title IX of the Education Amendments of 1972 prohibits sex discrimination in education. This includes sexual harassment of students by teachers or other employees, and harassment between students. Members of the women’s college swimming team filed a lawsuit in a New York federal court against their school in September 2019. They allege that the school failed to act on their complaints of sexual harassment by members of the men’s team. If you feel you are suffering from harassment that is sexual in nature, contact a New York City sexual harassment attorney to learn what your rights are under the law.

Title IX prohibits any educational institution that receives federal funding from discriminating on the basis of sex in terms of access to educational opportunities and benefits, and participation in educational activities. 20 U.S.C. § 1681(a). The federal regulations implementing Title IX do not provide the kind of specific guidance that is available for Title VII claims for sexual harassment. See 29 C.F.R. § 1604.11. The swimmers’ lawsuit cites several regulations, however, that demonstrate how sexual harassment can deny equal educational opportunity. This includes “equal athletic opportunity.” 34 C.F.R. § 106.41(c).

The U.S. Supreme Court first recognized a private cause of action for sexual harassment under Title IX in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). That case involved a teacher and a student. The following year the court ruled on a student’s claim of sexual harassment by another student in Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999). The elements of a claim for student sexual harassment, outlined in Davis, are similar to the elements of a hostile work environment claim under Title VII. A plaintiff must demonstrate that the school “act[ed] with deliberate indifference to known acts of harassment,” and that the harassment was “so severe, pervasive, and objectively offensive” as to prevent “access to an educational opportunity or benefit.” Id. at 633.

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Sexual harassment is unfortunately still a common occurrence in the entertainment industry. New York City sexual harassment attorneys have represented plaintiffs in television, film, music, and theater, to name only a few areas. In August 2019, several individuals involved with opera productions around the country came forward with allegations that a famous male opera singer had sexually harassed them. By mid-September, the number had grown to twenty women, including opera singers, dancers, and others. The Associated Press (AP) reported that the singer’s alleged harassment “was an open secret,” and that “young women were left to fend for themselves in the workplace.” In late September, the singer announced that he was withdrawing from an upcoming production of Verdi’s “Macbeth” at New York City’s Metropolitan Opera (the “Met”).

Employment laws all over the country prohibit discrimination on the basis of sex, and include sexual harassment in this category of discrimination. At the federal level, Title VII of the Civil Rights Act of 1964 prohibits multiple forms of sexual harassment. One form, known as hostile work environment, occurs when “unwelcome…conduct of a sexual nature…creat[es] an intimidating, hostile, or offensive working environment.” 29 C.F.R. § 1604.11(a)(3). An employer is typically liable for hostile work environment when the perpetrator is a manager or supervisor. If the unwelcome sexual conduct comes from a co-worker, customer, client, or other individual in the workplace, an employer may be held liable if they knew about the conduct and failed to take reasonable actions to prevent it.

The allegations against the opera singer are reminiscent in some ways of the allegations against the Hollywood film producer that launched the #MeToo movement. The producer’s behavior was also described as an “open secret.” Aspiring actresses were reportedly warned about him and advised about ways to avoid his advances. At the same time, the perception was often that acceding to requests—or demands—for sexual activity were a requirement for entry into Hollywood. This is how the term “casting couch” came about.

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The #MeToo movement has given a voices to countless people who have experienced sexual harassment in the workplace. Beginning with the entertainment industry, it has demonstrated time and again that unwelcome sexual conduct is a pervasive problem, and that it is often a very poorly kept secret. Much of what we have learned is not news for New York City sexual harassment lawyers or their clients. Now that #MeToo has been around for almost two years, researchers have acquired enough data to assess its impact. What they are finding, unfortunately, is not uniformly good news. While it seems as though most people understand what constitutes sexual harassment, few people agree on how to address it. A disquieting number of people, both men and women, seem willing to avoid sexual harassment by excluding women from the workplace altogether, and therefore replacing one form of unlawful sex discrimination with another.

Sexual harassment is considered sex discrimination under laws like Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-2(a), 29 C.F.R. § 1604.11. The Equal Employment Opportunity Commission (EEOC) identifies three general categories of conduct that constitutes unlawful sexual harassment. Two of those are examples of “quid pro quo sexual harassment”: submission to sexual behavior is a condition of employment, whether that is stated or implied; or employment decisions depend on how an employee responds to sexual overtures or remarks. The third type of sexual harassment identified by the EEOC, hostile work environment, occurs when unwelcome sexual conduct “unreasonably interfer[es] with an individual’s work performance” or otherwise renders the work environment intolerable. 29 C.F.R. § 1604.11(a)(3).

Civil rights activist Tarana Burke coined the term “Me Too” in 2006. In 2017, its use as a hashtag on the social media platform Twitter gave the #MeToo movement its name. The movement is generally agreed to have begun in October 2017, when the New York Times published an actress’ allegations of sexual harassment by a prominent Hollywood producer. Many more women and men spoke out about their experiences with sexual harassment. People did not just talk about the perpetrators. They also talked about the environments that allow such conduct to continue unchecked. Many people tolerate, or even abet, such workplace behavior, perhaps because that often seems easier than standing up against it.

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Federal law prohibits various discriminatory acts by employers, such as discrimination on the basis of pregnancy or childbirth, but its protections have limitations. Title VII of the Civil Rights Act of 1964 only applies to employers with fifteen or more employees. 42 U.S.C. § 2000e(b). It also does not apply to religious organizations with regard to “the employment of individuals of a particular religion.” Id. at § 2000e-1(a). The statute does not provide guidance on how to determine whether an employer is a religious organization or not. A number of for-profit businesses, rather than churches or other expressly religious organizations, have claimed religious exemptions in recent years. A proposed rule published by the U.S. Department of Labor (DOL) could expand the definition of “religious organization.” This can be an issue for New York City pregnancy discrimination attorneys when an employer claims a religious exemption from antidiscrimination laws.

Title VII prohibits pregnancy discrimination, which includes “pregnancy, childbirth, [and] related medical conditions,” as a type of sex discrimination. Id. at § 2000e(k). In 1965, the president issued Executive Order (EO) 11246, which expanded the requirements of Title VII to all federal contractors, regardless of their number of employees. “Religious entities,” however, are exempt on the same basis as the exemption from Title VII. 41 C.F.R. § 60-1.5(a)(5). This means that, for example, an expressly Christian organization may refuse to hire individuals who are not Christian for certain positions. A similar exemption applies to religious schools. See id. at § 60-1.5(a)(6).

The “ministerial exception” provides another exemption from antidiscrimination laws for religious organizations. It states that religious organizations are not bound by antidiscrimination laws with regard to “ministers.” For example, a church can refuse to hire a person as a priest or pastor who is not a part of that church’s religion. Recent court decisions, however, seem to have expanded the definition of “minister.” In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), the Supreme Court affirmed the dismissal of a teacher’s disability discrimination lawsuit, finding that her position with the school was “ministerial.” The Second Circuit recently affirmed that the ministerial exception barred a former Catholic school principal’s sex discrimination lawsuit. Another court, however, found that the exception does not apply in a pregnancy discrimination lawsuit brought by a college professor.
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Mandatory arbitration clauses have become a common feature in many employment contracts, requiring employees to submit their claims to alternative dispute resolution (ADR) instead of going to court. As New York City sexual harassment attorneys, we have found that arbitration often tends to favor defendants in employment disputes. It also deprives aggrieved employees of their “day in court,” since ADR proceedings are usually subject to non-disclosure rules. The state of New York enacted a law invalidating mandatory arbitration clauses in sexual harassment cases. This was meant to ensure that individuals alleging sexual harassment could have their day in court. Earlier this summer, however, a Manhattan federal court ruled that the Federal Arbitration Act (FAA) preempts the New York law.

Employment statutes at multiple levels in New York City prohibit discrimination on the basis of sex and other factors. Under all of these laws, sexual harassment is considered to be sex discrimination. Each statute defines procedures that claimants must follow in order to assert their rights. Federal law, for example, requires a claimant to file an administrative charge with a federal agency before they may file suit in a court of law. Mandatory arbitration clauses prevent claimants from initiating both administrative and judicial proceedings.

Arbitration resembles a courtroom trial in some ways. Both sides present evidence and arguments to a neutral third-party arbitrator, and the arbitrator makes a decision. If the contract calls for binding arbitration, the similarities to an official lawsuit mostly end. Under the FAA, courts of law may not vacate a binding arbitration award unless there is evidence of “corruption, fraud, or undue means,” or other “misconduct.” 9 U.S.C. § 10(a). A court may not modify a binding arbitration award without evidence of a “material miscalculation” or other error. Id. at § 11.

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Title VII of the Civil Rights Act of 1964 requires employees and job applicants to follow a rather lengthy administrative process before filing a lawsuit. New York City employment discrimination attorneys have multiple options when deciding how to approach claims like sexual harassment. Each statute defines procedures that lawyers and their clients must follow. A decision handed down by the U.S. Supreme Court in June 2019, Fort Bend County v. Davis, addresses a defense known as “administrative exhaustion.” Employers can raise this defense when a plaintiff did not follow the administrative process required by federal law. It can result in dismissal of a case. The Davis decision, however, holds that an employer waives the defense if they do not raise it soon enough.

Before an employee or former employee may file a lawsuit under Title VII in federal court, they must file a charge with the Equal Employment Opportunity Commission (EEOC). The deadline to file a charge is 180 days after the alleged unlawful act. 42 U.S.C. § 2000e-5(e)(1). The EEOC investigates the claim, and may attempt to reach a “conciliation agreement” with the employer. Id. at § 2000e-5(f)(1). It can decide to file suit against the employer on behalf of the complainant and others with similar claims.

A complainant only gains the right to file a lawsuit if, after 180 days, the EEOC has not initiated a lawsuit. The complainant can request a notice, known as a “right to sue” letter, that gives them ninety days to file suit. 29 C.F.R. § 1601.28. If an individual files a Title VII lawsuit before they have received a right-to-sue letter, the defendant can move to dismiss the lawsuit on the ground that the plaintiff did not exhaust all of their administrative remedies. Hence, it is known as the administrative exhaustion defense.
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The New York City Commission on Human Rights (CHR) issued a guidance document in February 2019 addressing workplace dress codes and grooming standards. Policies that prohibit hairstyles commonly associated with particular racial groups may violate the provisions of the New York City Human Rights Law (NYCHRL) that address race discrimination. The New York State Legislature took this issue on directly in July 2019, when it passed a law amending the New York State Human Rights Law (NYSHRL) to include “hair texture and protective hairstyles” in its definition of “race.” New York is the second state, after California, to include this in its antidiscrimination statute. A bill pending in New Jersey may make that state the third.

In its February 2019 guidance document, the CHR offers background information on hairstyle discrimination and its close relationship to race discrimination in employment. It is a significant problem among Black people, defined in the document as individuals with “African, African American, Afro-Caribbean, Afro-Latin-x/a/o or” other “African or Black ancestry.” It is also a major issue among people “who identify as Latin-x/a/o, Indo-Caribbean, or Native American.”

The CHR notes that, for many people, certain hairstyles are “part of a racial or ethnic identity” or “cultural practice.” Many of these hairstyles are prohibited under employer policies that treat them as “not suited for formal settings.” Whether intentional or not, these policies specifically target hairstyles commonly associated with specific racial or ethnic groups. The CHR document also addresses how some people’s “natural hair,” meaning hair that is “untreated by chemicals or heat,” can violate these standards. Adherence to these employment policies can be expensive, and can cause damage to hair over time from the use of chemicals to straighten hair.

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New York City employment discrimination laws protect transgender and gender-nonconforming workers by prohibiting discrimination on the basis of how they identify or express their own gender. State law in New York has similar provisions. A lawsuit filed in New York County Supreme Court in June 2019 alleges that a restaurant discriminated against a gender-nonconforming employee by requiring them to follow a dress code designed for people who identify as male. The New York City Commission on Human Rights (CHR), in interpreting city law regarding gender identity and gender expression discrimination, specifically identifies gender-specific dress codes as a violation.

The New York City Human Rights Law (NYCHRL) bars discrimination by employers based on gender and other factors. N.Y.C. Admin. Code § 8-107(1)(a). The statute defines “gender” as an individual’s “actual or perceived sex, gender identity and gender expression,” without regard to “the sex assigned to that person at birth.” Id. at § 8-102. The New York State Human Rights Law (NYSHRL) identifies gender identity and gender expression as a distinct protected class, defining it as one’s “actual or perceived…appearance, behavior, expression, or other gender-related characteristic,” also without regard to one’s assigned gender at birth. N.Y. Exec. L. §§ 292(35), 296(1)(a).

The City Council intended the NYCHRL to provide comprehensive protection, specifically noting its “uniquely broad and remedial purposes” and setting it apart from federal and state antidiscrimination statutes. N.Y.C. Admin. Code § 8-130(a). The CHR has stated that gender-specific dress codes or grooming standards violate the NYCHRL, and that individuals should not bear the burden of “demonstrat[ing] why a particular distinction…does not conform to their gender expression.” Employers may enforce dress codes or grooming standards as long as they are applied on a gender-neutral basis.

Employees who are pregnant, or who have recently given birth, have gained significant legal protections in recent years in New York City. New York pregnancy discrimination attorneys nevertheless encounter ongoing violations of city, state, and federal law. This includes not only direct adverse actions like demoting or terminating an employee because they become pregnant, but also failure or refusal to provide reasonable accommodations to pregnant or nursing employees. A recent report by the New York City Commission on Human Rights (CHR) found gaps in the law’s coverage that allow pregnancy discrimination to occur in certain situations. Recent amendments to the New York City Human Rights Law (NYCHRL) extend the statute’s reach to all employers in claims for sexual harassment, but for all other claims, it only applies to employers with four or more employees. N.Y.C. Admin. Code § 8-102. The CHR noted in its report that this leaves many domestic workers, meaning people employed in private homes, without legal protection.

Federal, state, and local statutes affecting New York City take different approaches to pregnancy discrimination. The definition of sex discrimination in Title VII of the Civil Rights Act of 1964 includes discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). The New York State Human Rights Law (NYSHRL) prohibits discrimination on the basis of “familial status,” and defines that term to include pregnancy. N.Y. Exec. L. §§ 292(26)(a), 296(1)(a).

The NYCHRL does not specifically mention pregnancy or childbirth as a protected category for antidiscrimination purposes. It addresses those issues through its prohibitions on caregiver discrimination, which applies to parents of minor children, and on discrimination based on sexual and reproductive health decisions. N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a). The statute also requires employers to provide reasonable accommodations for needs associated with pregnancy and childbirth. Id. at § 8-107(22). Amendments enacted in 2018 require covered employers to provide lactation rooms for employees.

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