Articles Posted in Hostile Work Environment

Voice RecorderIn New York City, sexual harassment is considered a form of unlawful sex discrimination. In order to assert a claim for sexual harassment in court, a complainant must provide evidence of the allegedly harassing behavior. State and federal rules of evidence, along with state laws dealing with recordings of conversations and phone calls, outline methods for preserving and presenting evidence of sexual harassment.

Forms of Sexual Harassment

The law defines sexual harassment as either (1) requests or demands for some sort of sexual activity as a condition for obtaining or keeping employment, or favorable workplace treatment; or (2) unwelcome sexual conduct that creates a hostile work environment. Sexual harassment often takes the form of verbal or written communications, as well as physical conduct like unwanted touching, groping, or more. A complainant can offer evidence in the form of eyewitness testimony, written communications, and recordings of conversations or exchanges, subject to evidentiary rules and state law.

Hearsay Rule

Rule 801 of the Federal Rules of Evidence is perhaps best summarized as a restriction on the use of out-of-court statements as evidence in court. It has many exceptions and a very important exclusion:  statements by an “opposing party,” such as a defendant, are not considered hearsay and are therefore admissible as evidence. Fed. R. Ev. 801(d)(2).
Continue reading

hourglassSexual harassment is a pervasive problem in nearly every type of workplace throughout the country. The media have paid particular attention to sexual harassment in the film industry in recent weeks after numerous allegations of sexual assault and abuse by a prominent Hollywood producer surfaced. Some allegations are quite recent, while others go back decades. Many of those who waited to go public with their allegations may have feared retaliation by the producer or others. New York City sexual harassment and retaliation are actionable as forms of employment discrimination under city, state, and federal laws. Each of these laws imposes a time limit for filing a claim, known as a statute of limitations. Complainants alleging sexual harassment do not have to come forward immediately, but the amount of time the law allows is measured in months, rather than years.

A wide variety of acts could support a claim for sexual harassment. A claim may allege a single incident or a lengthy pattern of incidents. The scenario presented by many of the allegations currently coming out of Hollywood—in which a producer or director demands sex from an actress in exchange for a part in a film, often with a threat to damage her career if she refuses—is almost the archetypal example of sexual harassment. Unwelcome comments or jokes of a sexual nature might constitute sexual harassment if they are severe or pervasive enough to create a hostile work environment. Unlike the first example, which might involve a single incident, a hostile work environment claim could involve more incidents than a complainant could easily remember. The time limit for filing is usually based on the most recent incident of harassment.

The purpose behind a statute of limitations is to encourage complainants to assert legal claims as soon as possible so that witnesses’ memories are still fresh and other evidence is still available. Most statutes of limitations begin to run from the date an injury or unlawful act occurs. They may also begin to run on the date that a person could reasonably be expected to have discovered an injury, such as in the case of an injury that is not immediately apparent.

Director's chairEmployment anti-discrimination laws all over the country prohibit sexual harassment, treating it as a type of sex discrimination. New York City workers are protected by federal, state, and municipal laws addressing sexual harassment. For many aggrieved workers, the actual harassment is not the only problem they must face. A substantial number of people who have reported alleged sexual harassment in the workplace have faced retaliation by their employers, ranging from reduced hours to termination. Many people hesitate to come forward about harassment because they fear losing their jobs. The recent media attention to sexual harassment in the Hollywood movie business has illustrated this issue, with many people waiting years to come forward, partly out of fear for their careers. Anti-discrimination laws like Title VII of the Civil Rights Act of 1964 address this concern by making retaliation a separate “unlawful employment practice.” In addition to legal claims for sexual harassment, people can also assert claims and recover damages for retaliation.

The Equal Employment Opportunity Commission (EEOC) defines workplace sexual harassment in two general ways:  requests or demands for some form of sexual activity as a condition of employment or better employment conditions, or with a threat of adverse employment consequences; and pervasive conduct of a sexual nature that renders the work environment hostile. The alleged harasser’s conduct may range from “unwelcome” sexual comments, jokes, or overtures to nonconsensual touching or sexual assault. A complainant must be able to establish that the conduct was “unwelcome” and that the alleged harasser knew or should have known as much. The EEOC has stated that “a complaint or protest” against the alleged harasser can prove the “unwelcome” nature of the conduct, but some individuals might not complain or protest for fear of repercussions. This is where Title VII’s provisions on retaliation come into play.

A guidance document issued by the EEOC in August 2016 addresses retaliation claims under Title VII. Employers may not retaliate against employees who privately oppose actions they find harassing or otherwise unlawful, for complaining of such conduct to a company human resources officer, nor for complaining to the EEOC or a comparable city or state agency. In the context of sexual harassment, the EEOC offers an example of an employee who tells a supervisor “leave me alone” and “stop it” in response to the supervisor’s “repeated sexual comments.” The EEOC defines “retaliation” as any “materially adverse action” taken against the employee, which “might well deter a reasonable employee from complaining about discrimination.”

sexual harassmentSexual harassment in the workplace has been a major topic of public discussion in the past few weeks, due in large part to the numerous allegations against Hollywood producer Harvey Weinstein. These allegations have placed the movie business under a spotlight, exposing behaviors that have long been considered “open secrets” among many people, and causing more than a few people in positions of power—mostly, but not exclusively, men—to consider their own behavior. Despite this newfound attention to the issue, sexual harassment in movies and television has been a well-known phenomenon for some time. It even has a nickname:  “the casting couch.” Sexual harassment is also a pervasive problem beyond the movies. In New York City, sexual harassment is essentially considered part of the culture of many businesses, from Wall Street to neighborhood restaurants. A survey of more than 2,000 women by the magazine Cosmopolitan found that one-third of the respondents had experienced sexual harassment at work. Hopefully, the attention that is currently focused on Hollywood will also consider the many other places where sexual harassment can occur.

Anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964 and laws in New York and New York City, view sexual harassment as a form of unlawful sex discrimination. It may consist of unwanted and inappropriate comments, jokes, or overtures of a sexual nature, as well as non-consensual touching and overt sexual assault. The federal Equal Employment Opportunity Commission (EEOC) states that actions such as these constitute sexual harassment in a legal sense in several possible situations, including when obtaining a job is conditioned on agreeing to some form of sexual activity. Sexual harassment also occurs when harassing conduct is severe or pervasive enough that it creates a hostile work environment. These situations can occur in nearly every type of workplace.

The movie business might offer the archetypal example of the EEOC’s first definition of sexual harassment. The term “casting couch” dates back to at least the 1930s, in the early days of the film industry. It refers to the notion that actresses—and sometimes actors—must submit to sexual activity with a producer or director in order to obtain roles in films and build their careers. Over the decades, the term has come to represent the industry’s tendency to tolerate this sort of behavior, even if it nominally claims to oppose it.

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.

Martini GlassAnnual holiday parties are supposed to be a time to relax and socialize with co-workers. Unfortunately, this is not the experience of many people. The relaxed environment, combined with the presence of alcohol, increases the likelihood that a co-worker might act illegally or inappropriately, even veering into the territory of sexual harassment. For non-supervisory employees, conduct at work-sponsored holiday parties can contribute to a hostile work environment, which is a type of New York sexual harassment. This unfortunate experience is mirrored in a lawsuit filed by a former Beacon Hotel employee in New York.

The plaintiff attended her company’s holiday party. During the party, her supervisor, a senior manager, invited her and other employees to a spa to get massages. Her supervisor allegedly flashed his genitals at the plaintiff and other employees, which the plaintiff found offensive. Later, the plaintiff and other employees allegedly went into a hot tub, where her supervisor made advances toward her and fondled her. Each time this happened, the plaintiff allegedly rejected his advances.

When the plaintiff returned to work, she alleges that her senior manager became hypercritical of her work performance and treated her differently from her male co-workers. For instance, the plaintiff was written up when she was 10-15 minutes late, but her supervisor did not do the same for male employees who came to work late. The plaintiff was terminated from employment, even though, prior to the alleged holiday party harassment, she received acceptable to excellent job performance reviews.

Continue reading

trainingThe Equal Employment Opportunity Commission (EEOC) is the federal agency charged with enforcing various employment statutes, including the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. In addition to the statutory language of Title VII and the court decisions interpreting it, the EEOC has developed its own regulations and guidelines regarding investigation and enforcement. The agency’s guidelines regarding harassment currently date from the 1990s, but it released proposed revisions to those guidelines earlier this year. It does not appear that the agency has adopted the new guidelines, but they offer a useful look at its priorities regarding harassment and discrimination, including New York City sexual harassment situations.

Title VII prohibits discrimination in employment on the basis of several factors, including sex. Amendments to the statute and Supreme Court decisions have expanded Title VII’s definition of “sex discrimination” to include a wide range of acts, including pregnancy discrimination, sex stereotyping, and sexual harassment. An employer violates Title VII when an executive, manager, or supervisor harasses an employee because of their sex, such as by making inappropriate remarks or demands of a sexual nature, or when an employer knows that such conduct is occurring between coworkers but fails to take reasonable action to remedy the situation.

The EEOC’s “Policy Guidance on Current Issues of Sexual Harassment” was issued on March 19, 1990. The agency first identified sexual harassment as a violation of Title VII in 1980, six years before the Supreme Court recognized it as such in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The purpose of the 1990 guidance documents was to build on the agency’s definition of sexual harassment in light of Vinson. The document addressed several specific questions, including how to determine when sexual conduct is “unwelcome” and whether a work environment is “hostile.”

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.

Contact Information