Articles Posted in Hostile Work Environment

Transit SignIn New York City, multiple employment statutes protect employees from sexual harassment and other practices in the workplace. An archetypal example of workplace sexual harassment might involve a supervisor who demands some sort of sexual activity of a subordinate as a condition of hiring or continued employment. Another classic example involves sexual jokes, remarks, or other conduct that renders the workplace intolerable for the complainant, commonly known as “hostile work environment.” The laws dealing with sexual harassment arose, in large part, from complaints by female employees about actions by male supervisors, but unlawful sexual harassment is not limited to acts perpetrated by men against women. A complaint filed earlier this year with the New York City Commission on Human Rights (CHR), for example, alleges that a female chief executive officer subjected female employees to inappropriate sexual remarks and behavior in the office.

Sex discrimination in employment is unlawful under New York City law, New York state law, and federal law. The New York City Human Rights Law (NYCHRL) prohibits “discriminat[ing] in compensation or in terms, conditions or privileges of employment” on the basis of gender and other factors. N.Y.C. Admin. Code § 8-107(1)(a)(3). The U.S. Supreme Court first recognized sexual harassment as a form of unlawful sex discrimination in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The court held that federal anti-discrimination law was not limited to “tangible, economic barriers erected by discrimination,” but instead it was “inten[ded] to strike at the entire spectrum of disparate treatment of men and women in employment.” Id. at 64 [internal citations omitted].

The scenario presented in Meritor involved a female employee’s claim of a hostile work environment created by the actions of a male supervisor. Courts have since expanded the legal concept of sexual harassment to include numerous other dynamics. Another landmark decision, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), found that a male employee could bring a claim for sexual harassment based on conduct by male co-workers. The plaintiff worked on an offshore oil platform in the Gulf of Mexico, where co-workers “forcibly subjected [him] to sex-related, humiliating actions,” largely based on perceptions of his sexual orientation. Id. at 77. Justice Scalia, writing for a unanimous court, noted that “male-on-male sexual harassment…was assuredly not the principal evil Congress was concerned with,” but it is a “reasonably comparable evil[]” covered by federal law. Id. at 79.

Golden Gate BridgeSexual harassment in the workplace violates federal anti-discrimination laws, as well as many state statutes and city ordinances. An individual seeking to assert a claim for sexual harassment, hostile work environment, or similar claims must decide which statute or statutes to cite. The choice of law can be a complicated issue, and it can depend on both legal and geographic factors. Fortunately for many or most workers alleging employment discrimination in New York City, the New York City Human Rights Law (NYCHRL) offers some of the broadest protections of any law in the country. State law in New York is less expansive but still more comprehensive than federal law. A lawsuit currently pending in a state court in California, Scott v. Upload, Inc., et al., No. CGC-17-558730, complaint (Cal. Super. Ct., San Francisco Cty., May 8, 2017), offers a view of how state laws dealing with sexual harassment can differ from one another. It also illustrates how allegations of sexual harassment can affect an entire industry. Much like New York City’s financial sector, the tech industry in Northern California seems to produce an ongoing series of sexual harassment lawsuits.

The main anti-discrimination statute covering the entire United States is Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). At the state level, the New York State Human Rights Law includes additional factors like marital status and sexual orientation. N.Y. Exec. L. § 296(1)(a). Multiple Supreme Court and New York court decisions have established that sexual harassment constitutes unlawful sex discrimination. The Scott lawsuit cites the California Fair Employment and Housing Act (FEHA) in support of its claims. The FEHA goes a step further than both Title VII and the NYSHRL by codifying harassment and a failure by an employer to prevent harassment as distinct unlawful acts. Cal. Gov’t Code § 12940(j).

The plaintiff in Scott worked for the defendant, a technology company based in San Francisco, from May 2016 to March 2017 as the “Director of Digital and Social Media.” Scott, complaint at 3. She identifies two individuals as co-founders and executives of the defendant, and she alleges that they “expressly referred to the company as a ‘boy’s club.’” Id. at 4. Male employees allegedly spoke openly in the office about their “sexual exploits,” id., and made overt sexual comments about female employees in their presence. Sexually charged dialogue also “permeated work emails,” according to the plaintiff. She further alleges that “male employees engaged in explicit sexual conduct in the office” in her and other female employees’ presence. Id. at 5. Shortly after complaining about this alleged conduct, the plaintiff was terminated.

Coworking SpaceSaying that the modern workplace is changing is something of a cliché, but new and innovative work environments are a daily reality for many people. New ideas inevitably bring new challenges, particularly in regard to the way employees interact with their employers and their colleagues. “Coworking” is a relatively recent development in many cities, including New York. Employment laws may not be equipped for some of the challenges these spaces can present. In a coworking space, people engaged in different businesses share a workspace. A few recent news reports and lawsuits have alleged sexual harassment in coworking spaces, illustrating some of the challenges this workplace model can present.

In order to assert a claim for New York City sexual harassment or other types of unlawful employment discrimination, a claimant must be able to establish an employment relationship. The law does not provide a specific definition of this relationship, although terms like “employer” and “employee” can have varying definitions, depending on the statute in question. An employer only meets the definition of that term under Title VII of the Civil Rights Act of 1964, for example, if it has “fifteen or more employees.” 42 U.S.C. § 2000e(b). The New York City Human Rights Law (NYCHRL) does not define “employment” or other related terms. None of these statutes offers an easy idea of how they apply to the types of interactions commonly found in coworking spaces.

At this point, it would be helpful to define “coworking.” The fundamental element of coworking is a shared office space that members can use on a daily basis. For small businesses, coworking offers inexpensive office space, often with a receptionist and other amenities. Some coworking businesses allow small businesses to rent dedicated offices, desks, or tables. Individual coworkers might include freelancers and people who work remotely from their employers, who want workspace with reliable wifi service, free coffee, and the company of other people who work in similar fields. Those are some of the benefits. The potential drawbacks include a lack of clear lines of communication and accountability if sexual harassment or other misconduct occurs.

The Plaza Hotel, over its 100-year history, has become a New York City icon. Its guests include political dignitaries and world-renowned entertainers; however, a recent lawsuit filed by current and former female employees portrays a very different side to the hotel’s culture.

Plaza HotelSix female staff workers of the hotel filed a New York City sexual harassment lawsuit against their employer. The complaint alleges that, under the New York City Human Rights Law, the women were subjected to unwanted touching and lewd remarks from their supervisors and co-workers. Furthermore, the lawsuit alleges that hotel management were made aware of the offensive behavior but ignored the plaintiffs’ concerns. Although the lawsuit against the Plaza Hotel is shocking, sadly, the existence of sexual harassment is not uncommon in the hotel industry. For instance, the owners of a Holiday Inn Express in South Carolina paid $90,000 to settle an Equal Employment Opportunity Commission (EEOC) claim, which alleged that the hotel subjected its female workers to sexual harassment. In addition, a recent report claims that 8 in 10 hotel workers have been harassed at work. Although the hotel management disputes the plaintiffs’ claims, the lawsuit is moving forward, and the plaintiffs plan to file an EEOC charge under federal law.

Federal law makes it illegal for an employer to treat someone differently because of that person’s sex, among other traits. The provisions related to sex discrimination not only prohibit explicit discrimination, such as firing an employee because of that person’s sex, but also prohibit more subtle forms of discrimination against an employee. In addition, unwelcome sexual advances, requests for sexual favors, and other comments or actions targeted at a person’s sex constitute “sexual harassment.” The person or people committing the harassment can be a co-worker, a direct supervisor, or a supervisor in another department. When harassment is brought to the attention of the employer, the employer may be responsible for addressing the issue. If not, the employer might not be free from liability, even if they are not involved in the harassment.

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Tesla auto botsSexual harassment in specific industries can become the subject of particular public attention when employees speak out about their experiences. This has certainly been true of the financial sector, with many accounts of firm cultures that condone or even encourage harassment of employees in New York City. Sexual harassment, however, is hardly limited to any one industry or region. The technology industry in California has been the most recent recipient of public scrutiny, after allegations of rampant sexual harassment in one major tech company gained wide attention. A lawsuit filed against another prominent Silicon Valley company has kept focus on the region. The lawsuit alleges “pervasive harassment” of female employees, as well as wage disparities and lack of opportunities for promotions. The defendant eventually fired the plaintiff, stating that an internal investigation found her claims to be baseless. Despite this, the lawsuit continues, and it has reportedly inspired others to speak up.

Laws like Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sex and other factors. The protections against sex discrimination go beyond prohibitions against blatantly discriminatory practices like refusing to hire someone because of their gender. Courts have found that sexual harassment constitutes unlawful sex discrimination when it involves a demand for some sort of sexual activity or favor in exchange for some employment benefit, or when the harassment is pervasive or severe enough to create a hostile work environment. An employer may be liable for harassment perpetrated by a supervisor or manager. If the alleged harasser is not in a supervisory or managerial position over the recipient, the employer may still be liable if it learns of the harassment and fails to take remedial action.

In 2013, the plaintiff in the lawsuit mentioned above began working for the defendant, which designs, manufactures, and sells electric cars. She eventually received a promotion to a position in the general assembly department as an engineer at the company’s factory in Fremont, California. She was reportedly one of the only women in the department, and she alleges that she received less pay than the male engineers she replaced. She further alleges that less qualified male engineers were promoted over her, that management ignored her reports about problems with quality testing of new vehicles, and that she faced retaliation for those reports.

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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