When the Sexual Harasser Is Also the Boss in New York

HollywoodSexual harassment is a pervasive problem throughout the country, affecting nearly every type of business. Recent allegations against a particularly well-known Hollywood movie producer have started a nationwide conversation about workplace sexual harassment, illustrating not only the extent to which powerful people can demand sexual activity as a condition of employment opportunities, but also the reluctance of others to intervene or speak out, often out of concern for their own jobs. In a legal sense, sexual harassment includes many more types of situations than the archetypal “casting couch” scenario, in which powerful people take advantage of people with some of the least power. This scenario provides a useful overview of how New York City sexual harassment often occurs and how people can fight against it.

Federal, state, and New York City employment statutes prohibit employment discrimination based on sex, which includes sexual harassment. According to the federal Equal Employment Opportunities Commission (EEOC), sexual harassment can range from unwelcome sexual comments or jokes to nonconsensual touching and outright sexual assault. The EEOC identifies three scenarios in which such conduct meets the legal definition of sexual harassment:  (1) when one’s employment is conditioned on submitting to sexual conduct, (2) when decisions affecting a complainant’s employment are based on their submission, or (3) when the conduct creates a hostile work environment or otherwise “unreasonably interfer[es]” with the complainant’s ability to do their job. 29 C.F.R. § 1604.11(a).

A pair of Supreme Court decisions issued in 1998 affirmed that employers are vicariously liable for sexual harassment perpetrated by supervisors, defined as employees whom the employer has empowered to make employment-related decisions like hiring, firing, promotions, and assignment of job duties and shifts. If the alleged perpetrator of sexual harassment is not in a supervisory position over the complainant, such as a co-worker or customer, the complainant must also show that the employer was aware of the harassment but failed to act.

Supervisors, by virtue of their authority over regular employees, are deemed to be acting on behalf of the employer. The employer has a legal duty to ensure that supervisors follow the law. In many companies, however, the “supervisor” and the “employer” are the same person, or a small group of closely affiliated individuals. While this might make liability relatively easy to establish, it often makes the overall process of complaining about unlawful harassment much more difficult. A movie producer, for example, might act in a supervisory capacity over everybody involved in a film, and they might also be the principal decision-maker for the business entity that employs all of those people.

Numerous accounts of alleged sexual harassment against this particular Hollywood producer and others have emerged in recent weeks. A movie producer’s power over the workplace is a key factor in nearly every story. Aspiring actresses and some actors are allegedly told by some producers and directors that submission to sexual activity is part of paying their dues in Hollywood. Producers allegedly make employment decisions based on their own sexual preferences. All of this has been an open secret, but no one speaks out because of the risk to their own livelihoods. The law offers support for people in these positions. Hopefully, our culture will catch up with the law sometime soon.

Phillips & Associates’ experienced and skilled sexual harassment attorneys advocate for the rights of employees, former employees, and job applicants in New York City. To schedule a free and confidential consultation with a member of our team, contact us today online or at (212) 248-7431.

More Blog Posts:

New York Lawmaker Takes Steps to Protect Fashion Models in Wake of Recent Sexual Abuse Allegations, New York Employment Attorney Blog, October 23, 2017

Multiple Sexual Harassment Claims Filed Against New York City-Based News Network and Associated Individuals, New York Employment Attorney Blog, October 19, 2017

Hotel Supervisor’s Alleged Sexual Advances at Company Holiday Party Lead to New York Harassment Lawsuit, New York Employment Attorney Blog, October 10, 2017

Photo credit: StockSnap [CC0 1.0], via Pixabay.

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