Articles Posted in Hostile Work Environment

Appetizer at Applebee'sServers in restaurants are in a particular position of vulnerability to unlawful employment practices like sexual harassment. New York City, with its abundance of restaurants, offers countless examples, but it is a nationwide problem. Job positions for servers can be very competitive, and supervisors have considerable discretion regarding shift assignments. Furthermore, most servers are dependent on tips for their income. This places many servers in a position in which they could face harassment not only from supervisors and managers, but also from customers. A server may hesitate to speak out about harassment by a customer for fear of losing tips, and they may fear speaking out against their employer for fear of losing shift assignments or their job. A lawsuit filed last year by the Equal Employment Opportunity Commission (EEOC) offers an example of the sort of environment that servers face throughout the country. EEOC v. New Apple, Inc., No. 4:17-cv-01150, 2nd am. complaint (D.S.C., Dec. 14, 2017).

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of multiple factors, including sex. Through amendments to the statute and Supreme Court decisions, the definition of sex discrimination has expanded since 1964 to include pregnancy discrimination and sexual harassment. The courts have identified two broad categories of sexual harassment. Quid pro quo sexual harassment occurs when a supervisor or manager demands sexual activity in some form as a condition of employment, such as when a restaurant manager demands sexual favors from a server in exchange for the most lucrative shift assignments. A hostile work environment occurs when a general environment of unwelcome and inappropriate conduct of a sexual nature interferes with the server’s ability to do their job.

The EEOC is charged with investigating alleged Title VII violations. Claims of sexual harassment and other forms of discrimination under Title VII usually begin with a complaint filed with the EEOC. If, once the EEOC completes its investigation, it finds a reasonable basis to conclude that unlawful employment practices occurred, it may try to resolve the matter with the employer without litigation. It files suit directly against employers in some cases, or else it provides the complainant with a “right to sue” letter that authorizes them to file suit themselves in federal court.
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cityscapeThe New York City Human Rights Law (NYCHRL) is among the most comprehensive anti-discrimination statutes in the country, protecting employees and job applicants against discrimination, harassment, and retaliation on the basis of a wide range of factors. Much like state and federal employment statutes, New York City’s employment law treats sexual harassment as a form of unlawful sex discrimination. City law differs, however, in its requirements for establishing a hostile work environment. Some lawmakers worry that the statutes in their jurisdictions impose too great a burden on employees alleging sexual harassment in the form of a hostile work environment, and they are looking to the NYCHRL for new ideas. In January 2018, a California state senator held a public hearing on the “severe or pervasive” standard in hostile work environment claims. The hearing included testimony by the New York City Human Rights Commissioner.

Under California law, a plaintiff alleging a hostile work environment must establish that the alleged harassment was “pervasive or severe.” Cal. Civ. Code § 51.9(a)(2). The U.S. Supreme Court has held that a hostile work environment constitutes unlawful sex discrimination under federal law when the harassing behavior is “severe or pervasive enough to create…an environment that a reasonable person would find hostile or abusive.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). California courts have adopted this standard for sexual harassment claims under state law. Lyle v. Warner Bros. Television Productions, 42 Cal.Rptr.3d 2, 12 (2006). The California Supreme Court has identified “[c]ommon sense, and an appropriate sensibility to social context” as a guide in determining whether conduct is sufficiently “severe.” Id. at 16. To meet the “pervasive” requirement, a plaintiff “must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” Id.

The “severe or pervasive” standard has been criticized for overlooking all but the worst instances of workplace harassment. According to one New York appellate court, it has “routinely barred the courthouse door to women who have, in fact, been treated less well than men because of gender.” Williams v New York City Hous. Auth., 61 A.D.3d 62, 73 (N.Y. App., 1st Div. 2009). Judicial interpretations of the NYCHRL therefore do not “simply mimic[] its federal and state counterparts.” Id. at 74. Based on findings that the “severe or pervasive” standard “unduly narrows the reach of the law,” the NYCHRL requires a plaintiff claiming a hostile work environment to prove “that she has been treated less well than other employees because of her gender.” Id. at 78.

Earlier this month, a federal appellate judge on the United States Court of Appeals for the Ninth Circuit retired amid allegations that he engaged in sexual harassment and unwelcome touching over the course of his 32 years on the bench. According to a recent report by the New York Times, at least 15 women have come forward to report that the judge sexually harassed them through unwanted sexual comments or physical contact, including kissing, hugging, and groping. These allegations are not unlike those in many New York sexual harassment cases.

Judge's GavelThe judge apologized to those whom his conduct affected. However, his comments following his sudden retirement fell short of acknowledging any inappropriate conduct, citing the fact that he has a “broad sense of humor and candid way of speaking.”

One woman who had served as a clerk for another judge on the Ninth Circuit came forward, telling reporters that the judge suggested she exercise naked. She explained that the power dynamics in the legal profession made it difficult for her to come forward with allegations against a sitting judge. Now a professor at a California law school, the former clerk told reporters that she owes it to the next generation of lawyers to create a better version of the legal profession.

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people-coffee-meeting-team-7096The 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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Workplace bullying is a pervasive problem, with one study finding that nearly three-fourths of surveyed employees had experienced bullying in their jobs. Legal protections are often only available to the extent that workplace bullying also constitutes discrimination or harassment on the basis of a protected category, which includes sexual harassment. New York City sexual harassment laws might then allow a cause of action. A story that appeared in news media earlier this year offers an example of alleged bullying—specifically, efforts to shame a coworker after she reported alleged sexual harassment by a supervisor—that might have supported a claim for sexual harassment. This particular case, however, appears to have been resolved without litigation.

person-homeless-bullied-hiding-1821412The Workplace Bullying Institute (WBI) defines the term to include verbal abuse, interference with a person’s work, and other acts aimed at “threatening, humiliating, or intimidating” someone. “Bullying” is not a legal term, but it might meet the legal definition of sexual harassment if it is primarily based on a person’s sex, and it creates a hostile work environment that interferes with that person’s ability to perform their work responsibilities.

While not using the actual word “bullying,” several landmark decisions from the U.S. Supreme Court demonstrate the close connection between bullying and sexual harassment. The court first recognized sexual harassment as an actionable form of sex discrimination in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The court held that unlawful sexual harassment occurs when the harassing behavior is “severe or pervasive” enough “to alter the conditions of…employment and create an abusive working environment.” Id. at 67. Several years later, the court clarified that a plaintiff does not have to show that the hostile work environment was severe enough “to cause a tangible psychological injury.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). A plaintiff must show both that they “subjectively perceive the environment to be abusive” and that “a reasonable person would find [it] hostile or abusive.” Id.

blue rosesSexual harassment in the workplace can take many forms, from inappropriate comments to sexual assault. When alleged sexual harassment involves alleged assault, a claimant might be able to assert both statutory and common-law causes of action. This potentially raises questions about preemption. Disputes between employees and employers tend to fall under the purview of employment statutes like the New York State Human Rights Law (NYSHRL), while tort claims like assault are based on common law. The Texas Supreme Court ruled earlier this year that the state’s employment statute does not preempt an employee’s tort claim alleging sexual assault by a supervisor when “the gravamen of a plaintiff’s claim is not harassment, but rather assault.” BC v. Steak N Shake Operations, Inc., No. 15-0404, slip op. at 1 (Tex. Sup. Ct., Feb. 24, 2017).

Multiple New York employment discrimination statutes prohibit discrimination by employers on the basis of sex. Sexual harassment is considered a type of sex discrimination when it involves a “quid pro quo” demand for sexual activity as a condition of employment, or when it creates a hostile work environment that prevents an employee from doing their job. Employers can be held strictly liable for sexual harassment by supervisors, managers, or executives. They may be liable for sexual harassment by coworkers when they knew or should have known about the harassment but failed to take reasonable steps to stop or prevent it. A single incident, if severe enough, could support a claim for quid pro quo sexual harassment or hostile work environment.

The plaintiff in BC worked at a restaurant owned and operated by the defendant in the Dallas, Texas area. She alleged in her lawsuit that a supervisor, who “had neither spoken nor acted in a sexually suggestive manner” before, sexually assaulted her during an overnight shift at the restaurant in October 2011. BC, slip op. at 2. She sued the defendant and the supervisor, asserting multiple tort claims, including assault, sexual assault, and battery.

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).
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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.

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