Articles Posted in Hostile Work Environment

The restaurant industry is very familiar to New York City sexual harassment attorneys. The business model and managerial structure of many restaurants might never have been intended to foster multiple forms of sexual harassment, but that is exactly what happens far too often. Competition for shift assignments can lead unscrupulous supervisors and managers to take advantage of the power their positions give them. Reliance on tips can make servers hesitate to report or otherwise call out harassment. Behavior that creates a hostile work environment can go unchallenged as a result. Thankfully, many people are standing up for their rights. The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing antidiscrimination law, recently filed a lawsuit on behalf of several women alleging sexual harassment by a chef at a restaurant in Upstate New York.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of sex and several other factors. 42 U.S.C. § 2000e-2(a). The EEOC recognized sexual harassment as a form of sex discrimination in violation of Title VII in the early 1980s. Court decisions and administrative rulings have expanded the legal definition of sexual harassment over the years.

Federal law now recognizes two general categories of sexual harassment. 29 C.F.R. § 1604.11(a). Quid pro quo sexual harassment occurs when giving in to unwelcome demands for some sort of sexual activity is made a condition of someone’s employment or is the basis for employment decisions, including hiring and firing. A hostile work environment occurs when pervasive and unwelcome sexual conduct prevents a person from doing their job.

Continue reading

Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, including sexual harassment, in employment throughout the country, including New York City. Sexual harassment is not limited to the workplace, and Title VII is not the only federal statute that views sexual harassment as unlawful discrimination. Title IX of the Education Amendments of 1972 prohibits sex discrimination in education. This includes sexual harassment of students by teachers or other employees, and harassment between students. Members of the women’s college swimming team filed a lawsuit in a New York federal court against their school in September 2019. They allege that the school failed to act on their complaints of sexual harassment by members of the men’s team. If you feel you are suffering from harassment that is sexual in nature, contact a New York City sexual harassment attorney to learn what your rights are under the law.

Title IX prohibits any educational institution that receives federal funding from discriminating on the basis of sex in terms of access to educational opportunities and benefits, and participation in educational activities. 20 U.S.C. § 1681(a). The federal regulations implementing Title IX do not provide the kind of specific guidance that is available for Title VII claims for sexual harassment. See 29 C.F.R. § 1604.11. The swimmers’ lawsuit cites several regulations, however, that demonstrate how sexual harassment can deny equal educational opportunity. This includes “equal athletic opportunity.” 34 C.F.R. § 106.41(c).

The U.S. Supreme Court first recognized a private cause of action for sexual harassment under Title IX in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). That case involved a teacher and a student. The following year the court ruled on a student’s claim of sexual harassment by another student in Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999). The elements of a claim for student sexual harassment, outlined in Davis, are similar to the elements of a hostile work environment claim under Title VII. A plaintiff must demonstrate that the school “act[ed] with deliberate indifference to known acts of harassment,” and that the harassment was “so severe, pervasive, and objectively offensive” as to prevent “access to an educational opportunity or benefit.” Id. at 633.

Continue reading

Sexual harassment is unfortunately still a common occurrence in the entertainment industry. New York City sexual harassment attorneys have represented plaintiffs in television, film, music, and theater, to name only a few areas. In August 2019, several individuals involved with opera productions around the country came forward with allegations that a famous male opera singer had sexually harassed them. By mid-September, the number had grown to twenty women, including opera singers, dancers, and others. The Associated Press (AP) reported that the singer’s alleged harassment “was an open secret,” and that “young women were left to fend for themselves in the workplace.” In late September, the singer announced that he was withdrawing from an upcoming production of Verdi’s “Macbeth” at New York City’s Metropolitan Opera (the “Met”).

Employment laws all over the country prohibit discrimination on the basis of sex, and include sexual harassment in this category of discrimination. At the federal level, Title VII of the Civil Rights Act of 1964 prohibits multiple forms of sexual harassment. One form, known as hostile work environment, occurs when “unwelcome…conduct of a sexual nature…creat[es] an intimidating, hostile, or offensive working environment.” 29 C.F.R. § 1604.11(a)(3). An employer is typically liable for hostile work environment when the perpetrator is a manager or supervisor. If the unwelcome sexual conduct comes from a co-worker, customer, client, or other individual in the workplace, an employer may be held liable if they knew about the conduct and failed to take reasonable actions to prevent it.

The allegations against the opera singer are reminiscent in some ways of the allegations against the Hollywood film producer that launched the #MeToo movement. The producer’s behavior was also described as an “open secret.” Aspiring actresses were reportedly warned about him and advised about ways to avoid his advances. At the same time, the perception was often that acceding to requests—or demands—for sexual activity were a requirement for entry into Hollywood. This is how the term “casting couch” came about.

Continue reading

The #MeToo movement has given a voices to countless people who have experienced sexual harassment in the workplace. Beginning with the entertainment industry, it has demonstrated time and again that unwelcome sexual conduct is a pervasive problem, and that it is often a very poorly kept secret. Much of what we have learned is not news for New York City sexual harassment lawyers or their clients. Now that #MeToo has been around for almost two years, researchers have acquired enough data to assess its impact. What they are finding, unfortunately, is not uniformly good news. While it seems as though most people understand what constitutes sexual harassment, few people agree on how to address it. A disquieting number of people, both men and women, seem willing to avoid sexual harassment by excluding women from the workplace altogether, and therefore replacing one form of unlawful sex discrimination with another.

Sexual harassment is considered sex discrimination under laws like Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-2(a), 29 C.F.R. § 1604.11. The Equal Employment Opportunity Commission (EEOC) identifies three general categories of conduct that constitutes unlawful sexual harassment. Two of those are examples of “quid pro quo sexual harassment”: submission to sexual behavior is a condition of employment, whether that is stated or implied; or employment decisions depend on how an employee responds to sexual overtures or remarks. The third type of sexual harassment identified by the EEOC, hostile work environment, occurs when unwelcome sexual conduct “unreasonably interfer[es] with an individual’s work performance” or otherwise renders the work environment intolerable. 29 C.F.R. § 1604.11(a)(3).

Civil rights activist Tarana Burke coined the term “Me Too” in 2006. In 2017, its use as a hashtag on the social media platform Twitter gave the #MeToo movement its name. The movement is generally agreed to have begun in October 2017, when the New York Times published an actress’ allegations of sexual harassment by a prominent Hollywood producer. Many more women and men spoke out about their experiences with sexual harassment. People did not just talk about the perpetrators. They also talked about the environments that allow such conduct to continue unchecked. Many people tolerate, or even abet, such workplace behavior, perhaps because that often seems easier than standing up against it.

Continue reading

The New York State Legislature passed a bill on June 19, 2019, A8421/S6577, that makes multiple changes to how the New York State Human Rights Law (NYSHRL) handles claims involving sexual harassment and other alleged unlawful employment practices. Section 2 of the bill adds a new provision to the NYSHRL that would effectively eliminate an affirmative defense available to employers, first under federal law and then under New York law, that is quite familiar to New York City sexual harassment attorneys. Employers can avoid liability for hostile work environment when they can establish that the plaintiff did not utilize opportunities provided by the employer to prevent or rectify alleged harassment. It is known as the Faragher/Ellerth defense, after two U.S. Supreme Court decisions issued on the same day: Faragher v. Boca Raton, 524 U.S. 775 (1998); and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

A hostile work environment generally occurs, in violation of antidiscrimination law, when pervasive and unwelcome conduct of a sexual nature substantially interferes with an employee’s ability to perform their job duties. The Faragher/Ellerth defense allows an employer to raise an affirmative defense to liability that consists of two main elements: (1) the employer acted reasonably to prevent and/or remedy sexual harassment in the workplace; and (2) the employee unreasonably failed to make use of opportunities to prevent or address harassment. A third element, sometimes included in the defense, involves a lack of materially adverse action against the employee because of their complaint. If an employer can prove these two or three elements by a preponderance of evidence, they can avoid liability.

Both Faragher and Ellerth involved sexual harassment claims under Title VII of the Civil Rights Act of 1964. Courts have also applied the defense to claims under the NYSHRL. In 2009, a federal court in the Southern District of New York declined to apply the Faragher/Ellerth defense to a case brought under the New York City Human Rights Law (NYCHRL). It certified a question to the New York Court of Appeals, asking whether the Faragher/Ellerth defense was available in NYCHRL cases. New York’s highest court ruled in 2010 that the defense is not available, noting different wording in the NYCHRL compared to other statutes.
Continue reading

Multiple legal strategies are available to New York City employment discrimination attorneys who are planning to assert a claim for sexual harassment on a client’s behalf. Federal, state, and municipal law provide protection against a wide range of discriminatory workplace practices. State law includes provisions that specifically apply to domestic workers, and which outline various situations that may constitute unlawful sexual harassment. A lawsuit filed in a Manhattan federal court in April 2019 alleges sexual harassment and other claims against an individual who employed the plaintiff as an au pair for his son. The complaint cites provisions of state and federal law that apply to domestic workers.

While sexual harassment is deemed a type of sex discrimination in any workplace, the New York State Human Rights Law (NYSHRL) addresses it in more specific terms for domestic workers. The term “domestic worker” includes people employed in someone’s residence to perform housekeeping services; to care for a child or “a sick, convalescing or elderly person”; or for “other domestic service purpose[s].” N.Y. Exec. L. § 296-b(1), N.Y. Lab. L. § 2(16). The NYSHRL prohibits “unwelcome sexual advances,” “requests for sexual favors,” and other conduct in two scenarios:
1. When acquiescence “to such conduct is made…a term or condition of…employment,” or the employer bases employment-related decisions on how the individual responds to the conduct; or
2. When the conduct creates a hostile work environment that “unreasonably interfer[es] with…work performance.” N.Y. Exec. L. § 296-b(2)(a).
These are the same scenarios that constitute sexual harassment under federal and city law. The New York Legislature has taken the extra step of codifying these definitions, as they pertain to domestic workers, in the NYSHRL.

According to her complaint, the plaintiff was nineteen years old when the defendant hired her to work in his home as an au pair for his twelve-year-old son, and to perform other jobs around the house. She notes that the defendant was fifty-seven years old at that time. She also notes the difference in size between them, with the defendant allegedly outweighing her by about eighty pounds and standing more than seven inches taller.
Continue reading

The plaintiffs in a New York City sexual harassment lawsuit, which gained prominence in large part because of the #MeToo movement, recently filed affidavits containing additional allegations of harassment by the defendant against themselves and others. The affidavits are a response to a motion to dismiss filed by the defendant, a television host who lost his show after multiple women accused him of sexual harassment in late 2017. The lawsuit, filed in May 2018 in state court in Manhattan, alleges violations of the New York City Human Rights Law (NYCHRL). It names the host and the television network as defendants. The plaintiffs settled with the network in late 2018. The defendant host moved to dismiss the lawsuit in September 2018, claiming that the plaintiffs failed to state “valid causes of action” for their claims of sex discrimination, retaliation, and aiding and abetting.

The NYCHRL prohibits discrimination on the basis of numerous factors, including gender. Court decisions have recognized sexual harassment as gender discrimination in violation of this and similar statutes. Unlawful sexual harassment includes scenarios in which an employer creates or allows a “hostile work environment” consisting of unwelcome and pervasive sexual conduct, ranging from jokes or remarks to overtures or contact. It also includes “quid pro quo” situations in which acceding to demands for some form of sexual activity is a condition of employment. Retaliation for opposing or reporting suspected violations is itself an unlawful employment practice under the NYCHRL.

According to their complaint, the three plaintiffs were “all in their low 20s” when they worked for the defendant host, who was “in his mid-70s.” They began working for the network during a span of time from late 2015 to early 2017, and they allegedly experienced sexual harassment by the host during 2017. They allege that the host had a history of sexual harassment complaints going back at least as far as the 1980s, and that the network knew about this but “failed to take any remedial action for decades.”

New York City has taken many actions to combat discrimination and harassment in the workplace. These actions are not limited to legislation, such as the New York City Human Rights Law (NYCHRL), or investigations by the city’s Commissioner on Human Rights (CHR). In 2018, the CHR named Brooklyn-based street artist Tatyana Fazlalizadeh as its first Public Artist in Residence (PAIR). The program partners city agencies with artists “to address pressing civic issues through creative practice.” Fazlalizadeh unveiled a mural, entitled Respecting Black Women and Girls in St. Albans, in Daniel M. O’Connell Playground in Queens on April 12, 2019. The mural addresses experiences of “the daily indignities of anti-Black racism and sexism.”

New York City has officially declared, through the NYCHRL, that “bias-related violence or harassment…threaten the rights and proper privileges of [the city’s] inhabitants.” N.Y.C. Admin. Code § 8-101. The NYCHRL further states “that gender-based harassment threatens the terms, conditions and privileges of employment.” Id. In most situations, the NYCHRL only applies to employers with four or more employers, but any employer, regardless of size, could be liable for gender-based harassment. See id. at § 8-102.

The NYCHRL prohibits employment discrimination on the basis of race, gender, and multiple other factors. Id. at § 8-107(1)(a). “Discrimination” in this context can include workplace harassment. The statute also prohibits any “person,” which may include both individuals and businesses, from engaging in “discriminatory harassment” based on any protected category. This is broadly defined as knowingly using or threatening force to intimidate a person or interfere with their exercise of any legal right or privilege. Id. at § 8-603.
Continue reading

Employees in New York City who have experienced sexual harassment have several options for asserting claims and seeking damages. A New York City sexual harassment attorney with knowledge of the city’s legal system can help you determine the best route for your case. In 2015, the New York City Commission on Human Rights (CHR) ordered an employer to pay the maximum possible civil penalty allowed by the New York City Human Rights Law (NYCHRL)—$250,000—for the first time since the law’s enactment. A state court affirmed the order in Automatic Meter Reading Corp. v New York City (“AMRC”), 2019 NY Slip Op 50464(U) (N.Y. Sup. Ct., N.Y. Cty., Feb. 28, 2019).

Sexual harassment is considered a form of unlawful sex discrimination in two situations, known as quid pro quo sexual harassment and hostile work environment. The U.S. Supreme Court first recognized sexual harassment as a violation of federal antidiscrimination law in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The court held that the allegedly harassing conduct must be “severe or pervasive” enough to impact the claimant’s ability to perform their job. Id. at 67. State law in New York has adopted a similar standard.

New York City courts do not view the NYCHRL’s “standard for sexual harassment violations [as] a carbon copy of the federal and state standard.”, see also N.Y.C. Admin. Code § 8-130(a). A complainant asserting a claim under the NYCHRL does not have to prove harassment that meets the federal “severe or pervasive” standard. Instead, they need only prove that they were “treated less well than other employees” because of their gender, and that the allegedly harassing conduct was “more than non-actionable petty slights and minor inconveniences.”
Continue reading

Workplace harassment violates employment antidiscrimination law when it is based on a protected category, such as sex, race, or religion. This does not encompass the full range of hostile or abusive treatment that workers may encounter. A New York City employment discrimination lawyer must be able to identify a protected category under laws like Title VII of the Civil Rights Act of 1964 in order to bring a claim based on workplace bullying. State legislators in New York have introduced a bill intended to assist victims of workplace bullying, known as the Healthy Workplace Bill (HWB). The bill has not passed in any state as of April 2019, although a few states have passed laws that address workplace bullying to some extent.

What Is Bullying?

No single legal definition of “bullying” exists in the context of the workplace. The Workplace Bullying Institute, which researches the phenomenon and advocates for measures like the HWB, defines it as “abusive conduct” that “[t]hreaten[s], humiliat[es], or intimidate[s]” a person or prevents them from getting their work done through “interference” or “sabotage.” This is similar to the legal definition of a hostile work environment by agencies like the Equal Employment Opportunity Commission (EEOC).

Antidiscrimination Law and Bullying

Whether laws like Title VII and the New York City Human Rights Law (NYCHRL) apply to workplace bullying depends on the basis for the alleged abusive actions. In a landmark decision recognizing same-sex sexual harassment as a violation of Title VII, Supreme Court Justice Scalia noted that “Title VII does not prohibit all verbal or physical harassment in the workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). He further stated that Title VII is not “a general civility code for the American workplace.” Id.
Continue reading

Contact Information