Articles Posted in Hostile Work Environment

The COVID-19 pandemic has caused economic turmoil all over the country and the world. It has hurt restaurants more than many other kinds of businesses. The impact goes beyond the revenues of the restaurants themselves. Even without a pandemic, New York City sexual harassment lawyers see a substantial number of claims from workers in restaurants who rely on tips for much of their income. The problem seems only to have gotten worse when restaurants have been open this year. A report issued in early December by One Fair Wage (OFW), an organization that advocates for reform of wage laws affecting tipped employees, found substantial decreases in tips received by servers during the pandemic, along with an increase in incidents of sexual harassment. These two issues are closely related. Tipped workers’ reliance on tip income makes them particularly vulnerable to sexual harassment by supervisors, co-workers, and customers.

Laws like the New York City Human Rights Law, the New York State Human Rights Law, and Title VII of the Civil Rights Act of 1964 view sexual harassment as a type of unlawful discrimination on the basis of sex. Sexual harassment can occur in two general forms, both of which are unfortunately common in the restaurant industry. Quid pro quo sexual harassment takes place when a supervisor, manager, or another person with authority over an employee makes submission to sexual demands of some sort a condition of their employment. The other type involves pervasive or severe conduct of a sexual nature that is unwelcome and which a reasonable person would find to create a hostile work environment.

Under federal law and many state laws, including New York, employers are not obligated to pay tipped workers as much in cash wages as other employees. Instead, they must pay a lower minimum cash wage, with a “tip credit” for the difference between that amount and the regular minimum wage. Servers in New York City have a higher minimum wage than servers in the rest of the state, and state law sets a higher minimum wage than federal law.

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There are two sides to every story, as the saying goes. This is not usually true in the real world, but legal disputes are not like the real world. There are two sides in a lawsuit, each telling a different story. A plaintiff alleging sexual harassment will tell a story about misconduct in the workplace. The defendant’s story might include a denial that those events actually happened. At Phillips & Associates, our attorneys’ concern is making certain that our clients’ stories have evidence behind them. Asserting a claim for sexual harassment without enough evidence could result in the dismissal of one’s claims. It could also lead to liability for defamation, although this is a difficult claim to prove. A New York City federal court recently dismissed a defamation lawsuit filed by a former hedge fund manager accused of sexual harassment. The lawsuit targeted an online publication, not any of his accusers, but it illustrates how these two areas of law often intersect.

Employment statutes like the New York City Human Rights Law (NYCHRL) prohibit discrimination on the basis of sex, including sexual harassment. A sexual harassment complaint filed in court must include enough factual allegations to support a claim under the NYCHRL or another antidiscrimination law. The plaintiff will have the opportunity to tell their story as the case progresses, and the defendant will be able to present their version of events.

“Defamation” is a broad legal term that covers spoken false statements (slander) and written false statements (libel). Courts in the U.S. set a high bar for anyone alleging defamation. A defamation claim in New York requires proof, among other elements, that the statement in question was false and that it was made without any sort of legal privilege.

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Filing a sexual harassment lawsuit requires putting highly unpleasant allegations on paper, and then filing them in the public record. People of all genders have felt able to come forward in the past few years with accounts of sexual harassment in the workplace and elsewhere. Some people bring legal claims, while others tell their stories to the media. A few alleged harassers have responded with legal claims of their own, often focusing on alleged falsehoods in their accusers’ stories. Parties on both sides of New York City sexual harassment claims sometimes bring defamation claims against their opponents. Defamation is a personal injury claim alleging that a defendant made a false statement about the plaintiff that resulted in financial harm. The New York Legislature passed a law this summer that targets defamation lawsuits intended not to recover damages for actual losses, but to silence people by threatening them with expensive litigation. These are often known as “strategic lawsuits against public participation, or “SLAPPs,” and they sometimes appear in response to sexual harassment claims.

A sexual harassment complaint must provide enough information about the alleged behavior to enable the court, the defendant, and others to understand the nature of the plaintiff’s claims. Sexual harassment is a type of sex discrimination under both New York and federal law. A plaintiff must demonstrate that one or more people in the workplace engaged in hostile or harassing behavior based on sex. This may include, for example, unwelcome sexual conduct or remarks that are either pervasive or severe enough that a reasonable person would find that it created a hostile work environment.

A plaintiff’s complaint must set forth the type of behavior that led to their claims. This often includes direct accusations of harassment against one or more individuals. As a case progresses, a plaintiff must continue to gather and present evidence for their claims.

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The restaurant industry presents some of the most egregious examples of workplace sexual harassment in the country. New York City sexual harassment attorneys handle claims arising in nearly every part of the economy, so the problem is not at all limited to that industry. Restaurants seem to present many of the circumstances in which harassment often thrives. Servers may depend on supervisors to assign them good shifts, and then they depend on customers for tip income. Some restaurants foster environments where, even if servers and other employees are not overtly sexualized, sexual banter is tolerated or even encouraged. A lawsuit filed this summer in a New York City state court alleges many of the most egregious situations found in restaurant sexual harassment cases. The plaintiff’s complaint describes ongoing harassment by both employees and customers of the restaurant.

Under laws like the New York State Human Rights Law and Title VII of the Civil Rights Act of 1964, sexual harassment is considered a type of sex discrimination. The law recognizes two broad categories of sexual harassment: hostile work environment and quid pro quo harassment. A hostile work environment claim arises when unwelcome sexual conduct in the workplace is so pervasive or severe that it interferes with someone’s ability to perform their job duties. A single incident can support a hostile work environment claim if it is severe enough, although this is a difficult burden of proof to meet. Most claims alleging a hostile work environment involve ongoing verbal or physical harassment.

Quid pro quo sexual harassment occurs when an employee must give in to some sort of sexual demand as part of their job or in order to obtain a job. In the film and television business, the term “casting couch” refers to the practice of producers or directors giving a role to whoever is most agreeable to such demands. In the restaurant business, it often occurs when a manager or supervisor expects sexual favors in exchange for the best shift assignments or other perks.

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Mandatory arbitration provisions are an increasingly common feature in many kinds of contracts, including employment contracts. Arbitration is a form of alternative dispute resolution that resembles a trial in many ways. It offers certain advantages over litigation, but it is often disadvantageous for employees. New York State law does not allow employers to enforce mandatory arbitration clauses in discrimination claims, including sexual harassment. A New York City court recently denied an employer’s attempt to do exactly this. It rejected the employer’s argument that federal law preempts the New York law. This conflicts with a 2019 decision by a federal judge in the Southern District of New York, which could be an issue in the pending appeal.

Sexual harassment is considered to be a form of unlawful discrimination on the basis of sex in two situations:
1. When acquiescence to sexual demands is a condition of employment, known as quid pro quo sexual harassment; or
2. When unwelcome sexual conduct is so severe or pervasive that it creates a hostile work environment.
In 2018, the New York Legislature enacted a law, codified as § 7515 of the New York Civil Practice Law and Rules, prohibiting “mandatory arbitration to resolve any allegation or claim of discrimination” under the New York State Human Rights Law or other employment antidiscrimination statutes.

The plaintiff in the state court lawsuit filed suit in April 2019 for sexual harassment and retaliation under state and city law. She alleges that the employer, a multinational fashion and luxury goods company, “did everything it could to bury the problem,” and that it tried to “convince [her] that the harassment was just a byproduct of being an attractive woman who works at a company with a French culture, and thus should simply be tolerated.”

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Sexual harassment remains a problem in workplaces throughout the country and the world. As New York City sexual harassment attorneys, we have seen how it can affect every kind of workplace in the city. People with supervisory or managerial authority may decide to abuse their power against workers who may fear standing up for their rights. Many complaints of sexual harassment appear in the restaurant industry, where supervisors have authority over employee schedules, and employees often compete with each other for shifts and tips. The Equal Employment Opportunity Commission (EEOC) recently announced that it had settled a sexual harassment lawsuit against a company that operates a chain of restaurants in the city.

Title VII of the Civil Rights of 1964 prohibits employment discrimination on the basis of sex and certain other factors. Under a series of decisions by the U.S. Supreme Court and other courts, sexual harassment violates Title VII’s sex discrimination provisions in two situations:
1. Quid pro quo sexual harassment occurs when an employee is expected to submit to sexual demands in some form as a condition of getting a job, keeping a job, or obtaining favorable employment conditions. In the restaurant industry, a supervisor with authority over shift schedules who demands sexual favors in exchange for the best assignments has committed quid pro quo sexual harassment.
2. A hostile work environment occurs when unwelcome sexual conduct in the workplace is so severe or pervasive that it interferes with a person’s ability to do their job, and any reasonable person would find the situation to be objectively “hostile.” A restaurant that routinely tolerates sexual banter, especially if this occurs over the objections of some employees, could be considered a hostile work environment.

The EEOC filed suit in May 2019 against several companies that operate a chain of restaurants in New York City. The complaint, filed on behalf of a former manager at one of the restaurants, alleged multiple acts of harassment by at least two upper-level managers. This conduct, the complaint alleged, occurred at all of the restaurant locations, as well as during and after the charging party and other employees lodged complaints about the behavior.

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