Articles Posted in Gender Discrimination

The holiday season means many different things to people: family, friends, food, a general sense of merriment, and so on. It also means that many employers will host holiday parties for their employees, managers, executives, and perhaps clients and customers. The “office holiday party” has a reputation, largely thanks to movies and television, as an unabashedly wild event free from customary rules and restrictions. It is our duty as New York City employment attorneys to remind everyone that the rules still apply, however wild the party might be. Harassment on the basis of any protected category is unlawful. We believe that holiday parties should be fun for everybody, meaning that the fun should never come at anyone’s expense.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, race, color, religion, and national origin. Other federal statutes prohibit age and disability discrimination. The Equal Employment Opportunity Commission (EEOC) has determined that this includes harassment of any employee based on these factors, whether it comes from someone in a supervisory position or not. An employer may be liable in either situation if they are aware of the harassment and fail to make reasonable efforts to address it. The New York City Human Rights Law (NYCHRL) protects a much broader range of categories than Title VII, including sexual orientation and gender identity.

The EEOC has stated that isolated incidents, unless they are particularly severe, do not constitute violations of Title VII or other statutes. This generally applies to violations of the NYCHRL as well. Multiple acts of harassment become a violation of antidiscrimination law when they create a hostile work environment, or otherwise interfere with an employee’s ability to do their jobs.
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Over three thousand people gathered in New York City on November 1, 2018 as part of a worldwide “walkout” by Google employees. The walkout’s purpose was to protest the company’s reported handling of sexual harassment and misconduct allegations against a former executive. About twenty thousand employees worldwide participated in the walkout. The company later announced changes to its procedures in sexual harassment cases. In situations like this, where employees take direct action to demand change from employers, New York City sexual harassment attorneys should be aware of workers’ legal rights, and the extent of protection for workers who walk off the job.

Statutes like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL) prohibit employers from discriminating against workers on the basis of sex. This includes sexual harassment in various scenarios. Before aggrieved employees may go to court to sue for damages, they must make use of administrative procedures within the employer, if any, and within a government agency like the Equal Employment Opportunity Commission (EEOC). Most antidiscrimination statutes do not require employers to maintain any specific policies or practices regarding the investigation of sexual harassment allegations. The NYCHRL is an exceptions thanks to recent amendments. Employers are required, however, to apply whatever policies and practices they do maintain fairly and consistently.

The walkout by Google employees was not a “strike” in the common sense of the term, since it did not arise from a collective bargaining disagreement between the employer and a union. It still arguably falls under the types of activities protected by the National Labor Relations Act (NLRA). In addition to activities that are directly related to organizing for collective bargaining, the NLRA protects workers’ rights “to engage in other concerted activities for the purpose of…mutual aid or protection.” 29 U.S.C. § 157. Employers may not “interfere with [or] restrain…employees in the exercise” of these rights. Id. at § 158(a)(1).
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The past year has seen a significant increase in public and media attention to the issue of sexual harassment in the workplace. Allegations against major figures in politics, media, and other industries have led to what is known as the #MeToo movement, in which people who have remained silent about their experiences with alleged sexual harassment are finally speaking up. An increase in sexual harassment complaints, however, could lead to at least one potential area of concern—the workload and backlogs of the government agencies tasked with investigating employment discrimination complaints. New York City workers can file complaints with federal, state, or city authorities, but complainants in many parts of the country do not have as many options. The federal Equal Employment Opportunity Commission (EEOC) is responsible for investigating alleged discrimination in violation of Title VII of the Civil Rights Act of 1964, among other federal statutes. The agency has had a substantial backlog of cases for some time, but it remains to be seen whether the past year has added to their backlog of sexual harassment complaints.Workers who have experienced New York sexual harassment may be able to bring claims under three statutes:  Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. Each of these laws considers sexual harassment to be a form of unlawful discrimination on the basis of sex. Agencies at the city and state levels handle complaints under city and state laws, respectively. The EEOC deals with complaints that cite Title VII or another federal anti-discrimination statute.

In order to file a lawsuit under Title VII, a worker must first file a complaint with the EEOC, known as a “charge.” The EEOC will investigate the charge to determine if it has merit. It will pursue a small number of cases on behalf of the complainants. In most cases, however, it will either rule that the charge lacks merit, or it will issue a “right to sue” letter to the complainant. This enables the complainant to file suit in federal court.

The most recent data regarding EEOC charges are from fiscal year 2017. The agency resolved more cases than it received during that year, reducing the overall backlog. It resolved a total of 99,109 charges, while receiving 84,254 new charges. About 25,000 new charges, or 30 percent of the total charges received, alleged sex discrimination in some form. The EEOC stated that nearly 6,700 of those charges alleged sexual harassment.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. Court decisions have expanded Title VII’s definition of sex discrimination to include sexual harassment. Some of these decisions are now leading courts around the country to expand Title VII protection to discrimination on the basis of sexual orientation and gender identity. New York City discrimination law, unlike federal law, expressly includes both of these as protected categories. Two Supreme Court decisions on sexual harassment have played a significant role in decisions relating to sexual orientation and gender identity discrimination. One decision, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), held that discrimination based on “sex stereotyping” violates Title VII. This year marks the 20th anniversary of the other decision, Oncale v. Sundowner Offshore Services, Inc. (“Oncale II”), 523 U.S. 75 (1998), which held that same-sex sexual harassment is also covered by Title VII.The Supreme Court received the Oncale case from the Fifth Circuit Court of Appeals, which had ruled that Title VII does not apply to harassment between members of the same sex. Oncale v. Sundowner Offshore Services, Inc. (“Oncale I”), 83 F. 3d 118 (5th Cir. 1996). The Fifth Circuit held that it was bound by its own prior decision in Garcia v. Elf Atochem North America, 28 F.3d 446 (5th Cir. 1994). It noted, however, that other courts had reached different conclusions. A concurring opinion from a Second Circuit justice, for example, stated that “harassment is harassment regardless of whether it is caused by a member of the same or opposite sex.” Oncale I at 120 n. 3, quoting Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 148 (2d Cir.1993) (Van Graafeiland, C.J., concurring).

The plaintiff in Oncale was part of an eight-man crew on an oil platform in the Gulf of Mexico. At least three members of the crew, including “the crane operator, and…the driller, [who] had supervisory authority,…forcibly subjected [him] to sex-related, humiliating actions…in the presence of the rest of the crew.” Oncale II at 77. He eventually sued for sexual harassment under Title VII.

A unanimous Supreme Court ruled in the plaintiff’s favor. Writing for the court, Justice Scalia stated that there was no “categorical rule excluding same-sex harassment claims from the coverage of Title VII.” Id. at 79. He distinguished the case from claims involving alleged sexual orientation discrimination, finding that “harassing conduct need not be motivated by sexual desire to support an inference of [sex] discrimination.”

Numerous employment statutes protect workers from employment discrimination in New York City on the basis of various protected categories. These laws’ prohibitions on sex or gender discrimination include sexual harassment in certain forms, including the use of sexual activity as a condition of employment, and patterns of sexually-oriented behavior that create a hostile work environment. These laws also prohibit employers from retaliating against employees who assert their legal rights. A lawsuit filed late last year alleges that supervisors at a security company, which was contracted to provide services at JFK International Airport in Queens, engaged in unwelcome and offensive conduct, including allegedly forcing the plaintiff to watch live video feeds of other employees engaging in sexual activity. Powell v. Allied Universal Security Services et al, No. 1:17-cv-06133, complaint (E.D.N.Y., Oct. 20, 2017). Several more employees have reportedly joined the case as plaintiffs in 2018.

The New York City Human Rights Law (NYCHRL) prohibits employment discrimination on the basis of gender, which includes sexual harassment. N.Y.C. Admin. Code § 8-107(1)(a). At the state level, the New York State Human Rights Law (NYSHRL) contains similar provisions. N.Y. Exec. L. § 296(1)(a). Title VII of the Civil Rights Act of 1964, a federal statute, also provides similar protections, but it is not the only federal law that covers hostile work environment claims. The Civil Rights Act of 1991 specifically addresses racial discrimination in various areas, including employment, and prohibits “impairment” of “the full and equal benefit of all laws and proceedings…as is enjoyed by white citizens.” 42 U.S.C. § 1981.

The lead plaintiff in Powell worked for the defendant at JFK Airport for four years, according to her complaint. She alleges that she was given a choice between “hav[ing] sex with male supervisors and get[ting] ahead,” or “refus[ing] and be[ing] relentlessly harassed and retaliated against.” Powell, complaint at 1. She states that she “chose the latter,” id., and therefore faced discrimination based on race and gender, followed by retaliation for reporting the discrimination.
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In New York City, sexual harassment claims are covered by federal, state, and city law. The New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) offer some of the most comprehensive protection against discrimination in the country. Sexual harassment in the workplace has received a considerable amount of media attention in the past year, and both New York State and New York City have responded by enacting a series of new laws addressing numerous aspects of workplace harassment. The New York State Legislature passed a budget bill, S. 7507/A. 9507, in March, and the Governor signed it into law on April 12, 2018. Part KK of the bill includes multiple sexual harassment provisions. The New York City Council passed seven separate laws dealing with sexual harassment, collectively known as the Stop Sexual Harassment in NYC Act. The Mayor signed them all on May 9.

The new laws overlap on two matters: mandatory anti-harassment training and policies, and requirements for public contractors.

Mandatory Anti-Harassment Training

Subpart E of Part KK of the New York budget bill amends the Labor Law, adding a section that directs the state to develop a “model sexual harassment prevention guidance document” and a “sexual harassment prevention policy.” Employers must adopt the model policy, or one that is consistent with it; must distribute this policy in writing to all employees; and must provide annual anti-harassment training programs. This subpart takes effect on October 9, 2018.
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Sexual 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.

In 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.”

Asserting 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).

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).The 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.

The plaintiff in Fratello worked for the defendant as a schoolteacher, and then as principal of the school. She claimed that her job was presented as a “lay” position, and it did not “impose any loyalty tests, or require any professions of faith.” Fratello, No. 7:12-cv-07359, am. complaint at 13 (S.D.N.Y., Mar. 5, 2013). The amended complaint alleged numerous distinctions between the plaintiff and the plaintiff in Hosanna-Tabor, including that she was a “lay” teacher rather than a “called” teacher. Id. at 16-17. She worked under a priest, FJ, whom she alleged was placed at the school by the defendant.

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