Over the past year, countless people have come forward with accounts of sexual harassment in the workplace. Known as the #MeToo movement, it began in the entertainment industry, and has expanded to include many other industries and professions. Fashion models have described their experiences with harassment at photo shoots, fashion shows, and other events in New York City. Sexual harassment is covered by laws prohibiting sex discrimination in employment, but the fashion industry presents challenges under laws like the New York State Human Rights Law (NYSHRL). These laws generally apply to “employees.” Many who work in fashion are considered to be independent contractors. In October 2017, an Assemblywoman from Queens introduced A08572, the “Models’ Harassment Protection Act” (MHPA). This bill would amend the NYSHRL to include provisions specifically applying to the types of sexual harassment that models often experience, and to account for the employment relationship between model and designers, photographers, and others.
The U.S. Supreme Court established that the prohibition on sex discrimination in employment under federal law includes sexual harassment. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). New York courts have made the same determination with regard to the NYSHRL. See, e.g. Belle Ctr. v. Human Rights Div., 221 A.D.2d 44, 49-50 (N.Y. App. Div., 4th Dept. 1996).
Plaintiffs can allege two types of sexual harassment under these laws. Quid pro quo sexual harassment occurs when a “supervisor…expressly or tacitly link[s] tangible job benefits to the acceptance or rejection of sexual advances,” regardless of how the plaintiff responds to said advances. Id. at 50. Hostile work environment occurs when pervasive and unwelcome conduct of a sexual nature “alter[s] the conditions of the [plaintiff’s] employment.” Id. Neither theory of sexual harassment requires proof of economic loss, but a quid pro quo claim requires “proof of linkage between the offensive conduct and decisions affecting employment.” Id. at 50-51.