Articles Posted in Hostile Work Environment

Norwegian flight attendantBusinesses have a duty to protect their customers from dangerous conditions, and they may be liable for damages under a theory of negligence or premises liability. Employers have a duty to protect their employees from certain dangers. These duties sometimes overlap. They could complement one another, as when a business must protect both its customers and its employees from a shared risk. At other times, an employer may have a duty to protect its employees from sexual harassment and other acts by certain customers. This type of situation may arise in any business where employees interact with the general public, but airlines present a particular risk, considering the confined space of an airplane and the duration of many flights. Recent reports on the issue of both sexual harassment and sexual assault on airplanes demonstrate the complicated legal issues that can be involved.

For airline employees, such as flight attendants, an airplane is a workplace, subject to the same laws and regulations as an office, restaurant, store, or other place of business. The fact that an airplane is mobile, meaning that the exact location where an alleged unlawful act occurred might be difficult to determine, does not prevent aggrieved employees from asserting their legal rights. Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment and other discriminatory acts in the workplace, applies throughout the nation. It may also apply on airplanes owned and operated by American companies, even if they are traveling internationally. Under Title VII, an employer may be liable for sexual harassment of an employee by a supervisor or manager. It can also be liable for sexual harassment by a coworker or customer, if it knows or should know about the harassment and fails to take remedial action.

Media reports illustrate incidents of sexual harassment and assault on airplanes on a fairly regular basis. These stories are often presented as further examples of uncomfortable and difficult conditions on airplanes, but they have their own distinct importance, in a legal sense, for airline employees. In one example from late 2016, an airline ejected a passenger from a flight, before takeoff, for allegedly catcalling a flight attendant during the safety demonstration. For every story like this one, it is unfortunately likely that many more go unreported.
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restaurantSexual harassment in the workplace is a widespread problem throughout the country. Certain types of workplaces seem more prone to sexual harassment than others, but it can be a problem anywhere. A 2016 report by the Equal Employment Opportunity Commission (EEOC) addressed risk factors for workplace harassment and found that restaurants presented a particularly high risk. A lawsuit filed earlier this year contains allegations that demonstrate many of these risk factors. Baker v. Olive Garden, et al., No. 2:17-cv-00392, complaint (E.D.N.Y., Jan. 25, 2017). It also demonstrates another increasingly common feature of employment disputes—the use of alternative dispute resolution (ADR) procedures. The plaintiff voluntarily dismissed the case several weeks after filing it in order to pursue arbitration of the matter.

Most anti-discrimination laws view sexual harassment as a form of unlawful discrimination on the basis of sex. Quid pro quo sexual harassment involves requests or demands for sexual activity or contact in some form as a condition of employment—including getting a job, keeping a job, and various features of employment. The conduct does not need to be this blatant, however. A violation of law also occurs when sexual remarks or overtures—ranging from inappropriate comments or jokes to direct sexual overtures to outright assault—create a hostile work environment.

The EEOC report mentioned earlier identifies risk factors for workplace harassment. These include reliance on customer service, disparities in power among employees, a prevalence of younger employees, and the presence of alcohol. In a restaurant, servers and other employees depend on customers for tips. They may not be able to object to harassment by a customer, or by a supervisor with the power to assign work shifts. Supervisors have considerable power over servers’ schedules and assignments, and many restaurant employees are on the younger side. Many restaurants serve alcohol and might even encourage drinking on the job by some employees. Left unchecked, individual acts of harassment can create a hostile work environment.

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riverThe Second Circuit Court of Appeals recently reinstated a lawsuit alleging a hostile work environment based on race, religion, and national origin under Title VII of the Civil Rights Act of 1964. A federal district judge had granted the defendants’ motion for summary judgment last year, finding that the plaintiff had shown “no reasonable basis” for her claims. Ahmed v. Astoria Bank, et al. (“Ahmed I”), No. 1:14-cv-04595, mem. order at 1 (E.D.N.Y., Mar. 31, 2016). On appeal, the defendants cited the “sham issue of fact” doctrine, which prohibits a party from using contradictory evidence to defeat a summary judgment motion. The Second Circuit vacated the district court’s decision and remanded the case, finding that the evidence was not actually contradictory. Ahmed v. Astoria Bank, et al. (“Ahmed II”), No. 16-1389-cv, slip op. (2d Cir., May 9, 2017).

Title VII prohibits discrimination on the basis of multiple factors, including race, national origin, and religion. 42 U.S.C. § 2000e-2(a). The plaintiff in an employment discrimination lawsuit has the burden of proving the allegedly unlawful conduct. A defendant can challenge the plaintiff’s claims before trial and even get some or all of them dismissed with a motion for summary judgment. The defendant must show that “no genuine dispute as to any material fact” exists and that it “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A plaintiff can defeat summary judgment by showing that a “genuine dispute” does exist.

The plaintiff filed suit against her former employer in 2014, alleging that she had been “subjected to discrimination and unlawful termination” in violation of Title VII and other federal and state laws “because she was a Muslim of Egyptian and Arabic heritage.” Ahmed I at 2. The district court granted the defendants’ motion for summary judgment. On the hostile work environment claim, the court held that she had “identified only a few incidents, primarily stray comments from two specific individuals,” in support of her claims. Id. at 23.

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Financial DistrictEmployment discrimination based on sex is unlawful in New York City under employment statutes at the city, state, and federal levels. It is considered to include sexual harassment and pregnancy discrimination in most circumstances. A lawsuit filed late last year in a Manhattan state court alleges a pattern of discrimination that includes both of these. Castellanos v. Berkman Capital, et al., No. 159768/2016, complaint (Nov. 18, 2016). The plaintiff describes ongoing acts of sexual harassment, which allegedly culminated in termination when she asked for additional maternity leave.

Courts in the U.S. have recognized two broad categories of sexual harassment. Quid pro quo sexual harassment involves direct requests or demands for sexual activity of some sort as a condition of getting a job, keeping a job, or receiving other benefits of employment. Since this is far from the only kind of sexual harassment people can experience, courts have also recognized claims of sexual harassment when it creates a hostile work environment. The U.S. Supreme Court first recognized sexual harassment as a violation of Title VII of the Civil Rights Act of 1964 in the mid-1980s. It held that the harassment must be so “severe or pervasive” that it “alter[s] the conditions of [the victim’s] employment and create[s] an abusive working environment.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).

Pregnancy discrimination involves disparate treatment based on multiple factors surrounding pregnancy. The Pregnancy Discrimination Act of 1978 amended the definition of “sex discrimination” to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). This can include refusing to hire someone or terminating them because they are pregnant, or unreasonably reducing someone’s job duties or hours because of pregnancy or recent childbirth. The extent to which these laws require employers to make reasonable accommodations for pregnant or nursing employees, however, remains a matter of dispute in courts and legislatures.

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Staten Island FerrySexual harassment in the workplace can have a devastating impact, causing financial, emotional, and even physical harm. While that impact is usually—and justifiably—the focus, it is worth noting that sexual harassment is also bad for business, not only because it can result in civil liability but also because of the damage it does to a company’s productivity. Sexual harassment can even pose a danger to the public, as a lawsuit currently pending in a Brooklyn federal court alleges. The plaintiff claims that an environment of sexual harassment led to her supervisors ignoring her communications while she was working in her capacity as an assistant captain on the Staten Island Ferry. KA v. City of New York, No. 1:17-cv-00378, complaint (E.D.N.Y., Jan. 23, 2017). A lack of contact between a ferry and ferry employees on land, the plaintiff alleges, puts ferry passengers at risk.

Title VII of the federal Civil Rights Act of 1964 prohibits discrimination on the basis of sex, as well as retaliation against an employee who speaks out against such unlawful conduct. The legal definition of sex discrimination includes various forms of sexual harassment, such as demands for sexual activity of some sort as a condition of employment. It also includes unwanted remarks or overtures of a sexual nature, as well as sexualized conduct that creates a hostile work environment. The New York State Human Rights Law (NYSHRL) includes similar provisions that apply statewide, and the New York City Human Rights Law (NYCHRL) provides these protections at the city level.

According to her complaint, the plaintiff has worked for the Staten Island Ferry for about 10 years, from 2007 to 2008 and from April 2009 to the present. She states that she became licensed to captain a ferry in 2010, and she has held the position of assistant captain since about 2011. She has sought promotion to captain but alleges that her requests have been met with either “vague, evasive, and ultimately empty comments” or “definitive, discriminatory remarks…such as…’you can’t stand up to the men.’” KA, complaint at 5-6.

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Statue of LibertyNew York City is truly diverse, providing a home to millions of people of different religions, races, ethnicities, and cultures. This diversity helps make New York City a destination for people from all over the country and all over the world. When one group suffers from discrimination, harassment, and other disparate treatment because of their religion, race, or ethnicity, all of New York City suffers. We have entered a difficult time in this country, with widespread reports of harassment and even assaults against people of the Muslim faith or people perceived to be of the Muslim faith. This type of treatment can also enter the workplace, but anti-discrimination laws at the federal, state, and city levels assist employees in asserting their rights. A campaign launched by the New York City Mayor’s Office and the Commission on Human Rights, “I Am Muslim NYC,” seeks to educate people about city law.

The New York City Human Rights Law (NYCHRL) offers more protections for workers than almost any other employment statute in the country. It not only prohibits religious and racial discrimination but also expressly addresses employers’ duty to accommodate reasonable requests related to religious observances. In connection with its campaign, the city has issued a fact sheet outlining the ways the NYCHRL protects Muslims and others from discrimination in employment, housing, and public accommodations like restaurants and hotels. It includes three important points about employment discrimination.

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Lyndon JohnsonAnti-discrimination statutes, which cover New York City at the federal, state, and local levels, treat sexual harassment as a type of prohibited sex discrimination. As of 2017, this is a relatively well-established legal principle, but it took time to get to this point. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on several factors, including sex. This did not expressly include sexual harassment until the U.S. Supreme Court ruled on this type of dispute 22 years later. The inclusion of sex as a protected class under Title VII was also never a foregone conclusion. Numerous legal scholars have noted that the addition of sex to Title VII began as a “joke” in the House of Representatives, intended as an effort to prevent the bill’s passage. Fortunately for future generations of Americans, that effort failed.

Title VII’s protections against sex discrimination, found in 42 U.S.C. § 2000e-2, are unique within the Civil Rights Act itself. In addition to sex, this provision prohibits discrimination on the basis of race, color, religion, and national origin. The other well-known provisions of the statute do not include sex. Title II, for example, prohibits discrimination in “public accommodations” on the basis of “race, color, religion, or national origin.” Id. at § 2000a(a). Title III addresses discrimination in access to public facilities on the basis of these four categories. Id. at § 2000b(a). Title VI deals with discrimination in federally assisted programs on the basis of race, color, or national origin—but not sex or religion. Id. at § 2000d. How, then, did sex discrimination become part of Title VII?

Congress passed the Civil Rights Act on July 2, 1964, as Public Law 88-352, 78 Stat. 241. Only two states, Hawaii and Wisconsin, had passed laws against sex discrimination before this. Representative Howard W. Smith, a Democrat from Virginia and an outspoken opponent of civil rights legislation, reportedly added sex to Title VII as a “joke.” He apparently intended his addition to the bill to dissuade other representatives from voting for it. His scheme “backfired” on him “when the amendment was adopted on the floor of the House under the House five-minute rule.” Rabidue v. Osceola Refining Co., 584 F.Supp. 419, 428 n. 36 (E.D. Mich. 1984).

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BaghdadThe U.S. legal system operates at several levels, some of which may overlap at times, and some of which remain wholly independent of each other. In New York City, an employee or job applicant who has experienced sexual harassment or another form of unlawful discrimination may be able to file suit under city, state, or federal laws, or some or all of these. When a harassment or discrimination claim involves parties from different countries, or when the alleged unlawful acts occur in another country, complicated questions may arise about jurisdiction and international law. Reports of sexual harassment and assault by aid workers, who work for American organizations in other countries, raise this sort of question. Several recent lawsuits have also addressed the issue.

Each country has sovereign jurisdiction over their own legal disputes. For example, the laws of the United States are the “law of the land” within U.S. territory. The same is true for Canadian law within Canadian borders, Mexican law in Mexico, and so forth. International law consists of treaties and therefore relies on the consent of each individual country. Organizations like the United Nations (UN) maintain and monitor treaties among member nations but have no inherent enforcement authority. Sexual harassment that occurs across an international border is subject to the laws of one or more countries. This could be the law of the country where it occurs, but in the case of Americans working in a foreign country for an American employer, U.S. law could still apply.

The UN issued General Assembly Resolution 48/104, entitled the “Declaration on the Elimination of Violence against Women,” in 1993. In Article 2(b), it includes “sexual harassment and intimidation at work, in educational institutions and elsewhere” in its definition of violence against women. The resolution has no direct legal force on UN member nations. Article 4(d) – (f) encourages member nations to develop their own legislative and administrative provisions to address the issue. Several other international agreements contain similar declarations, including the Beijing Platform for Action from 1995 and the 1979 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). The U.S. is not a signatory to CEDAW.

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YosemiteNumerous professions in the U.S. remain “male-dominated,” despite decades-long efforts to achieve some semblance of equality in the workplace. The National Park Service (NPS) has been dealing with widespread allegations of sexual harassment at parks all over the country for much of 2016, and it is far from alone in this regard. In 2014, female employees of the U.S. Forest Service (USFS) alleged ongoing patterns of sexual harassment by their supervisors. Title VII of the Civil Rights Act of 1964 gives employees the ability to fight back against this type of workplace behavior, but workplaces that still maintain a certain type of “male-dominated” culture present serious challenges.

Gender discrimination in the workplace manifests in many ways, from a refusal to hire a job applicant because of their gender and disparate treatment of employees based on gender to sexual harassment and other acts creating a hostile work environment. Sexual harassment violates Title VII when it is based on gender and when it either involves a demand for sexual activity in some form as a condition of employment (quid pro quo sexual harassment) or renders the workplace unbearable for the recipient of the behavior (hostile work environment).

Title VII and other anti-discrimination statutes require complainants to follow an administrative procedure before filing a civil lawsuit. In the case of a federal agency like the NPS, this often begins with an internal report. An order from the director of the NPS issued in December 2011 states that a complainant may make an internal report to the NPS dispute resolution office, or they may file a complaint with the Equal Employment Opportunity Commission (EEOC). A complaint to the EEOC, the federal agency responsible for enforcing Title VII, is typically the last step before filing suit.

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handcuffsSexual harassment violates multiple employment statutes with jurisdiction over New York City. These statutes give victims of sexual harassment the right to recover damages in an administrative proceeding or a civil lawsuit. In some cases, the acts that lead to a sexual harassment complaint may also violate criminal laws. A lawsuit filed in the fall of 2016 demonstrates the unfortunately close relationship between civil claims for sexual harassment and certain criminal offenses. The lawsuit seeks to hold the plaintiff’s employer accountable for failing to respond to her complaints of sexual harassment, which led to an assault that left her with life-threatening injuries. Trease v. ITT Educational Svcs., Inc., No. 2:16-cv-02982, complaint (D. Ariz., Sep. 6, 2016).

Title VII of the Civil Rights Act of 1964 deals with various forms of employment discrimination throughout the country, including sex discrimination. Amendments to the statute and Supreme Court decisions have added to the statute’s definition of sex discrimination over the years. It now includes various forms of sexual harassment. Employers have a duty to respond to employees’ complaints about sexual harassment that creates a hostile work environment. At the state level, the New York State Human Rights Law (NYSHRL) provides similar protections for workers, and it sets similar expectations for employers. The New York City Human Rights Law (NYCHRL) does much the same for employers and employees in the city.

The plaintiff in Trease worked for the defendant, a “for-profit college” with locations around the country, as an “enrollment representative.” Trease, complaint at 3. Her complaint alleges sexual harassment by at least two individuals, a fellow employee of the defendant and a student, although the student’s alleged harassment dominates the story of the case. The student, who enrolled in the fall of 2011, had prior convictions from another state for “kidnapping, burglary, and rape,” and therefore he wore an ankle monitor. Id. The defendant assigned the student to the plaintiff. She alleges that the student made repeated “unwanted sexual advances,” but the defendant took no action in response to her complaints. Id. at 4.

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