Gender Discrimination Category Archives — Page 2 of 10 — New York Employment Attorney Blog Published by New York Employment Lawyers

April 25, 2018

New York City Lawsuit Makes Bold Allegations About Sexual Harassment Case

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).

April 18, 2018

New York Sex Discrimination, Retaliation Claim Barred by “Ministerial Exception,” According to Second Circuit

by Phillips & Associates

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.

March 15, 2018

Sexual Harassment Allegations Affect Entertainment Business in New York City and Hollywood

by Phillips & Associates

The film industry might call Los Angeles home, but New York City is home to countless television and film productions, actors and actresses, producers, directors, and production workers. In late 2017, allegations of sexual harassment against a prominent Hollywood producer helped launch the #MeToo and Time’s Up movements, which aim to highlight the problem of sexual harassment in entertainment. Both actresses and actors, as well as others employed in film and television, have come forward with allegations of sexual harassment by famous actors, directors, and producers. Some of these allegations may fall under New York City sexual harassment law, provided that they involve an employer-employee relationship. Not all incidents of alleged sexual harassment in entertainment meet this requirement, however, and the same could be said for many workplace settings. Lawsuits and other claims involving alleged sexual harassment in entertainment demonstrate alternative ways of pursuing justice through the courts.

Laws like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law prohibit sex discrimination in hiring, firing, and the terms and conditions of employment. Courts have held that sexual harassment is a form of unlawful sex discrimination when employment is conditional on sexual activity of some sort, or when inappropriate sexual conduct is pervasive enough to create a hostile work environment.

The “casting couch,” which signifies some directors’ and producers’ demands for sexual activity with actresses and actors in exchange for roles, is a Hollywood cliché that remains a pervasive problem. Beyond alleged demands for sexual favors behind closed doors, a recent Washington Post article discusses how young actresses trying to start their careers are pressured into doing nude scenes. It cites research showing that, in the 100 top-grossing films released in 2016, just over one quarter of “speaking or named female characters” appeared either nude or “heavily exposed,” compared to less than 10 percent of male characters.

January 2, 2018

Trump Administration Decides Not to Appeal Court Ruling Preventing Enforcement of Transgender Military Ban

by Phillips & Associates

New York City has one of the most robust anti-discrimination laws in the country. Indeed, in New York City, employers cannot discriminate based on a number of factors, including an applicant’s gender, sexual orientation, or partnership status. Despite the vigorous protections, employers continue to discriminate, especially against transgender individuals. In fact, the U.S. government openly discriminated against transgender individuals until very recently.Back in June of last year, President Trump announced his intention to ban transgender individuals from serving in the nation’s armed services. Since the announcement of that upcoming regulation, courts across the country have seen numerous lawsuits filed in an attempt to preclude the Trump administration from putting the regulations into effect.

Several of those lawsuits resulted in federal judges ordering that the policy not go into effect, based on the fact that it likely violates the Equal Protection Clause of the United States Constitution. According to a recent news report, the Trump administration has decided not to appeal the rulings, and it has begun to allow transgender individuals to enlist as of January 1, 2018.

New York Gender Expression Discrimination

As noted above, under the New York City Human Rights Commission, it is against the law to discriminate against an individual based on their expressed gender.

December 28, 2017

New York City’s Gender Pay Gap

by Phillips & Associates

Women who have been in the workforce for any amount of time are likely familiar with the gender pay gap. Essentially, the problem is that women are paid less than equally qualified men who perform the same job duties. Under New York and federal laws, this is illegal, but companies may try to get around the discrimination laws.One of the ways employers try to get around the New York sex discrimination laws is to base employee pay decisions on what the potential employee had previously been making at their last position. This used to be a permissible way of determining what an employee should be paid, or the size of a raise or bonus, until October of this year, when New York lawmakers prohibited the practice. This is because it is no secret that the wages of women have been artificially and improperly depressed for decades, and basing future decisions on the sexist policies of the past perpetuates sex discrimination.

Despite the efforts of lawmakers, the gender wage gap still exists, and by some accounts it is not necessarily getting better. That being said, New York has one of the lowest gender wage gaps in the country, at 11%.

December 22, 2017

Title VII Sex Discrimination Includes Gender Identity, According to Federal Court

by Phillips & Associates

The terms “gender identity” and “gender expression,” in the context of New York City gender identity discrimination law, encompass a spectrum of factors related to gender and self-image. New York City has included these factors in its employment discrimination law since 2002. A federal court did not find in favor of a gender identity discrimination claim until 2008. The landmark decision in Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008), is worth revisiting.

“Gender identity” refers to a person’s sense of their own gender, whether or not it matches their biological sex. “Gender expression” consists of how a person presents their gender, such as through their name, clothing, and behavior. A transgender person is someone who identifies as a different gender than the biological sex assigned to them at birth, and who might express themselves in accordance with that gender identity. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. 42 U.S.C. § 2000e-2(a)(1). A U.S. Supreme Court ruling recognizing “sex stereotyping” as a form of sex discrimination under Title VII, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), has led some courts and administrative agencies to extend Title VII protections to gender identity and gender expression claims.

The plaintiff in Schroer was a transgender woman who transitioned to a female gender identity and expression as an adult. Prior to her transition, she served in the U.S. Armed Forces for 25 years, retiring in January 2004 with the rank of colonel. She held a very high-level security clearance at the time of her retirement, due to her anti-terrorism work with the U.S. Special Operations Command.

December 6, 2017

How New York Employment Laws Deal With Alleged Sexual Harassment Among Entrepreneurs, Venture Capitalists

by Phillips & Associates

The past few months have seen proverbial dams burst with regard to sexual harassment allegations in places like Washington, D.C. and Hollywood. People—perhaps mostly, but not exclusively, women—who have long felt that coming forward would endanger their careers, or even their safety, finally feel that they can tell their stories. Months before the first allegations against Hollywood producers and Washington politicians began to dominate the news cycle, female entrepreneurs and tech workers in Silicon Valley, New York City, and elsewhere around the country were exposing cultures of sexual harassment in the startup world. The nature of the startup scene, however, presents certain legal challenges. Employment statutes prohibiting New York City sex discrimination and sexual harassment allow employees to file suit against their employers, but the relationship between startup founders and investors is not always that of employee and employer. In the absence of direct legal relief through anti-discrimination laws, entrepreneurs and investors are trying other methods to combat sexual harassment.

Laws like Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law (NYSHRL) prohibit employment discrimination based on a person’s sex. Sexual harassment, which includes a range of unwelcome, sexually oriented behaviors, from bad jokes to outright assault, constitutes unlawful sex discrimination when it is severe enough to create a hostile work environment impeding an individual’s ability to do their job, or when an employer makes sexual activity a condition of employment.

In order to successfully assert a claim for sexual harassment under Title VII, the NYSHRL, or another statute, a plaintiff must demonstrate an employment relationship. This is not present in many encounters between entrepreneurs and investors. A common, and often defining, feature of a “startup” company is an inability to meet operating costs through business revenue. Many startups spend years developing a product or service before even expecting such revenue. Instead, they rely on funding from investors. Venture capitalists (VCs) provide funding to startup businesses in exchange for stock in the company, and they often place one or more people on the company’s board of directors. If a VC sexually harasses an entrepreneur prior to this part of the funding process, the entrepreneur may have no recourse under existing anti-discrimination laws.
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November 16, 2017

New York State Investigation and Lawsuits Review Liability of Hollywood Producer’s Company for Sexual Harassment and Assault

by Phillips & Associates

In early October 2017, a prominent Hollywood production company fired one of its founders after numerous accounts of alleged sexual harassment and other misconduct became public. By mid-November, at least 50 women had come forward with allegations that depict a pattern of behavior going back decades. The allegations name a specific individual as the perpetrator, but legal liability for unlawful conduct like sexual harassment is not necessarily limited to the individual. The state of New York has reportedly opened an investigation into the producer’s company. At least two lawsuits allege that the company was aware of the producer’s behavior and was therefore negligent in failing to intervene.

New York sexual harassment is considered unlawful sex discrimination under Title VII of the Civil Rights Act of 1964, state law, and New York City law. Employers are vicariously liable for sexual harassment perpetrated by supervisors or managers against an employee in a subordinate position. An employee alleging sexual harassment by their boss can therefore seek to hold the employer liable under anti-discrimination law. To assert a claim under an employment statute like Title VII, a complainant must establish an employment relationship, either as an employee or as a job applicant. Certain common law claims, such as negligent hiring or negligent supervision, may be available when employment statutes might not apply.

The New York Attorney General (NYAG) announced in late October that it had opened an investigation into the company co-founded by the former film producer. The NYAG’s office has authority to investigate possible violations of the New York State Human Rights Law (NYSHRL), which prohibits multiple forms of workplace discrimination, including sex discrimination and sexual harassment. The statute also prohibits “aiding and abetting” unlawful employment practices. N.Y. Exec. L. § 296(6).

November 7, 2017

New York City Lawsuit Alleges Sexual Harassment by Celebrity Chef, Highlights Problems in the Restaurant Business

by Phillips & Associates

New York City is famed throughout the world for its restaurants, which offer a truly global selection of cuisine. Even the most glamorous restaurants in the city, however, are often anything but glamorous for many of the people who work there. Sexual harassment in New York City restaurants might soon gain as much notoriety as the city’s restaurants have gained fame. Renewed attention to Hollywood’s culture of sexual harassment and abuse has brought the issues of other industries in other cities to light, including the New York City food scene. A lawsuit filed this summer against a famous Manhattan hotel offers multiple examples of New York City sexual harassment in the service industry, and the ensuing months have brought further claims against restaurants and their chefs.

Federal, state, and local anti-discrimination laws identify two categories of sexual harassment, both of which are frequently present in the restaurant business. The first category, known as quid pro quo sexual harassment, involves requests or demands for sexual contact in some form in exchange for a job, or for preferable shift assignments and other features of employment. It often also involves overt or implied threats to one’s job if the requests are denied. The second category, hostile work environment, consists of unwelcome remarks, jokes, overtures, and other actions of a sexual nature that are pervasive or severe enough to interfere with the ability to perform one’s job duties. The conduct can range from offensive jokes to outright sexual assault.

Numerous features of the restaurant business seem to lend themselves to sexual harassment by supervisors, managers, coworkers, and customers. While sexual harassment is not limited to harassment of female servers and hostesses by men, that is perhaps the archetypal example, and it probably constitutes a substantial amount of the sexual harassment that occurs in New York City restaurants:

November 3, 2017

Male-on-Male Sexual Harassment in a New York Workplace

by Phillips & Associates

It has been hard to miss the recent headlines involving a major director and producer being accused of sexual abuse and harassment by several women. Indeed, what initially seemed like a single incident quickly turned into a series of allegations, each corroborated by a number of other victims who gathered the courage to come forward and discuss what they were put through.When it comes to discussing sexual harassment or abuse, it is not uncommon for additional victims to come forward once the first claim is made against an alleged harasser. To be sure, sexual harassment and sexual abuse are both extreme violations of a person’s dignity, and openly discussing one’s victimhood is something that someone must be ready to handle.

In the past, society has inexcusably allowed a stigma to attach to victims of sexual abuse or harassment. This perceived stigma attaches to all types of New York sexual harassment and abuse, including allegations involving male victims and male perpetrators.