Articles Posted in Hostile Work Environment

Since the fall of 2017, the national discourse has given considerable attention to the issue of sexual harassment in the workplace, perhaps more than it has ever received before. This is often referred to as the #MeToo movement. According to some news reports, it has left managers, supervisors, and executives in some industries uncertain about the future. In late 2018, Bloomberg reported that some Wall Street managers have adopted a new rule: “Avoid women at all costs.” Hyperbole aside, this reveals what could become a larger problem. In an effort to avoid what they perceive as risks for future sexual harassment claims, could employers perpetuate other forms of sex discrimination? One column describes this as a possible “unintended consequence” of #MeToo, as if women and their advocates somehow bear some share of responsibility. Other pieces take tones that range from scolding to mocking. For New York City sexual harassment attorneys, this is a very serious question.

Employment discrimination on the basis of sex is prohibited in New York City under three statutes: Title VII of the federal Civil Rights Act of 1964, the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL). An employer violates the law if they refuse to hire, refuse to promote, terminate, or otherwise discriminate against an individual based on their sex. These laws protect both men and women, although it is women who bear the brunt of sex discrimination in the workplace, both historically and currently. Provisions in the NYCHRL additionally protect transgender and non-binary workers against discrimination.

Sexual harassment constitutes sex discrimination under these statutes in two general scenarios: quid pro quo sexual harassment and hostile work environment. The U.S. Supreme Court first recognized sexual harassment as a form of sex discrimination under Title VII more than thirty years ago in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). It expanded this to include same-sex sexual harassment, e.g. male employees subjecting another male employee to a hostile work environment, twelve years later in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).
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The theater offers actors, directors, producers, and others countless opportunities for artistic expression. Unfortunately, what might seem like bold artistic expression to a few people often looks like harassment to others. Even more unfortunately, the theater is prone to the same power dynamics and imbalances that New York City sexual harassment lawyers see in almost every type of workplace. For more than a year, the country’s attention has been focused on abuses of power in film, television, and other media—mostly but not exclusively men—resulting in sexual harassment and assault. The theater business is no different, but many theaters are now acknowledging the problem. In addition to removing individuals accused repeatedly of harassment, some theaters are working to change their cultures. A theater near New York City recently fired its longtime artistic director after multiple allegations sexual harassment, and then announced changes to its “big personality workplace culture.”

Laws like Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of numerous factors, including sex. Sexual harassment in the workplace constitutes unlawful employment discrimination when sexual activity is made a condition of employment, or when it creates a hostile work environment that prevents an individual from doing their job. These laws give aggrieved employees recourse in the court system, allowing them to recover monetary damages and other relief. These laws are not very effective, however, at changing the workplace cultures that allow sexual harassment to occur, or even flourish.

Discrimination lawsuits brought by agencies like the Equal Employment Opportunity Commission (EEOC) occasionally lead to changes in workplace culture. A settlement or judgment might require an employer to adopt policies and provide training regarding sexual harassment. The EEOC has the authority, and ostensibly has the resources, to monitor compliance with such provisions. The extent to which they are successful in changing workplace culture is a matter of debate. Real change, as the saying goes, must come from within.
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The performing arts, including music, theater, and dance, are among the most famous features of New York City. Sexual harassment is unfortunately still common for performers and workers, despite recent efforts to bring attention and consequences to those who perpetrate or enable this sort of conduct. Statutes like the New York City Human Rights Law (NYCHRL) view certain types of sexual harassment as unlawful discrimination in employment on the basis of sex. A recent lawsuit filed against the city’s largest ballet company demonstrates that laws like the NYCHRL are not the only tools available to New York City sexual harassment lawyers. A former student at the ballet’s dance school alleges that the ballet company negligently allowed an environment of sexual harassment in Waterbury v. N.Y.C. Ballet, Inc., et al, No. 158220/2018, am. complaint (N.Y. Sup. Ct., N.Y. Cty., Sep. 18, 2018).

Hostile work environment is one type of sexual harassment covered by the NYCHRL and other statutes. It occurs when unwelcome sexual remarks, jokes, or advances impede an individual’s ability to perform their job duties. If acts allegedly constituting a hostile work environment also threaten workplace safety, privacy, or other legal interests, a negligence claim may be possible. Negligence is based on common-law principles. A plaintiff must establish four elements: 1) the defendant owed a duty of care to the plaintiff or the general public; 2) the defendant breached that duty; 3) the breach was the cause-in-fact of the plaintiff’s injuries; and 4) the plaintiff suffered measurable, compensable damage. Businesses have a duty to provide a reasonably safe environment for customers, employees, and others who would ordinarily be expected to be present on their premises. Employers have a duty to provide reasonably safe work environments for their employees.

The plaintiff in Waterbury is a ballet dancer and a former student at the ballet company’s school. She alleges that the company maintains a “fraternity-like atmosphere” that “emboldens [it and its dancers] to disregard the law and violate the basic rights of women.” Waterbury, complaint at 2. She studied at the ballet company’s dance school, and entered into a dating relationship with a male dancer. Her complaint describes a wide range of alleged conduct by dancers and others in the ballet company, and alleges that the company either ignored or enabled the conduct “so long as the institution continued to sell tickets and was profitable.” Id. at 8.
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New York City is renowned for its theater scene. Broadway theaters offer some of the best and most well-regarded productions in the world. The various levels of “off-Broadway” theaters offer everything from the familiar to the avant-garde. Given what we know about other media industries, it should be no surprise that theater workers must also deal with sexual harassment. New York City’s theater scene has taken some steps to address the issue, but it remains a serious problem. Reports from earlier this year revealed allegations of sexual harassment and assault in a popular “immersive” theater production, where audience members may interact directly with performers, and a few have allegedly groped cast members. In order to address this sort of situation, New York City sexual harassment attorneys may not only have to identify the legal relationships between the various parties, but also the ways in which the nature of the production itself could put people at risk.

Under statutes like the New York City Human Rights Law, sexual harassment is an unlawful form of sex discrimination in two broad scenarios. Quid pro quo sexual harassment occurs when an individual with managerial or supervisory authority demands some sort of sexual activity in exchange for employment or various perks of employment. One example of this in the entertainment world is the “casting couch,” in which a producer or director will cast someone in their production in exchange for sexual activity.

The other legally-actionable form of sexual harassment occurs when a pattern of unwelcome sexual conduct creates a hostile work environment that inhibits the ability to do one’s job. The perpetrators of a hostile work environment do not have to be in a superior position to the complainant for a claim to be viable. They could be co-workers, customers, or audience members. The complainant must, however, be able to show that the employer knew about the harassment and failed to take reasonable steps to deal with it.
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The holiday season means many different things to people: family, friends, food, a general sense of merriment, and so on. It also means that many employers will host holiday parties for their employees, managers, executives, and perhaps clients and customers. The “office holiday party” has a reputation, largely thanks to movies and television, as an unabashedly wild event free from customary rules and restrictions. It is our duty as New York City employment attorneys to remind everyone that the rules still apply, however wild the party might be. Harassment on the basis of any protected category is unlawful. We believe that holiday parties should be fun for everybody, meaning that the fun should never come at anyone’s expense.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, race, color, religion, and national origin. Other federal statutes prohibit age and disability discrimination. The Equal Employment Opportunity Commission (EEOC) has determined that this includes harassment of any employee based on these factors, whether it comes from someone in a supervisory position or not. An employer may be liable in either situation if they are aware of the harassment and fail to make reasonable efforts to address it. The New York City Human Rights Law (NYCHRL) protects a much broader range of categories than Title VII, including sexual orientation and gender identity.

The EEOC has stated that isolated incidents, unless they are particularly severe, do not constitute violations of Title VII or other statutes. This generally applies to violations of the NYCHRL as well. Multiple acts of harassment become a violation of antidiscrimination law when they create a hostile work environment, or otherwise interfere with an employee’s ability to do their jobs.
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The holiday season is upon us, which means office holiday parties will be happening soon. Although the start of the #MeToo movement shortly before last year’s holiday season might have led to fewer—or at least less extravagant—holiday parties, the holiday season always seems to make some people think the usual rules do not apply. As New York City sexual harassment lawyers, please let us assure you that the rules do still apply. Here is Phillips & Associates’ guide to throwing a holiday party that everybody in the office can enjoy.

First, let us speak a bit about what constitutes sexual harassment in the workplace—which includes office parties. Sexual harassment is a form of sex discrimination under statutes like the New York City Human Rights Law in two general scenarios:

  1. Quid pro quo sexual harassment occurs when sexual activity, from “dirty talk” to actual sexual contact, is made a condition of employment. This usually involves a supervisor, manager, or executive making demands of an employee in a subordinate position. It can be an outright demand, e.g. “do this if you want a good shift schedule.” It can also be more subtle, such as when the circumstances indicate that rejecting a supervisor’s advances will be damaging to one’s job.
  2. A hostile work environment occurs when an employee is subjected to unwanted and pervasive sexual remarks, jokes, overtures, or advances, to the extent that it interferes with their ability to do their job. This type of sexual harassment can occur between co-workers of equal rank within a company, but then the employer is only liable if they knew about the harassment and failed to act. Many hostile work environment claims involve an ongoing pattern of offensive behavior by one or more individuals. A single incident can also support a hostile work environment claim if it is severe enough.

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Over three thousand people gathered in New York City on November 1, 2018 as part of a worldwide “walkout” by Google employees. The walkout’s purpose was to protest the company’s reported handling of sexual harassment and misconduct allegations against a former executive. About twenty thousand employees worldwide participated in the walkout. The company later announced changes to its procedures in sexual harassment cases. In situations like this, where employees take direct action to demand change from employers, New York City sexual harassment attorneys should be aware of workers’ legal rights, and the extent of protection for workers who walk off the job.

Statutes like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL) prohibit employers from discriminating against workers on the basis of sex. This includes sexual harassment in various scenarios. Before aggrieved employees may go to court to sue for damages, they must make use of administrative procedures within the employer, if any, and within a government agency like the Equal Employment Opportunity Commission (EEOC). Most antidiscrimination statutes do not require employers to maintain any specific policies or practices regarding the investigation of sexual harassment allegations. The NYCHRL is an exceptions thanks to recent amendments. Employers are required, however, to apply whatever policies and practices they do maintain fairly and consistently.

The walkout by Google employees was not a “strike” in the common sense of the term, since it did not arise from a collective bargaining disagreement between the employer and a union. It still arguably falls under the types of activities protected by the National Labor Relations Act (NLRA). In addition to activities that are directly related to organizing for collective bargaining, the NLRA protects workers’ rights “to engage in other concerted activities for the purpose of…mutual aid or protection.” 29 U.S.C. § 157. Employers may not “interfere with [or] restrain…employees in the exercise” of these rights. Id. at § 158(a)(1).
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The fashion industry in New York City and elsewhere around the country and the world has produced numerous accounts of the sexual harassment of models. Alleged New York sexual harassment incidents have involved photographers during shoots, or a wide range of people backstage during fashion shows, where models are often expected to change clothes without much privacy. Much of the attention has focused on female models. An article published earlier this year in the New York Times details male models’ allegations of sexual harassment. Men experience sexual harassment at lower overall rates than women, with the Equal Employment Opportunity Commission reporting that seventeen percent of the complaints it receives are from men. The modeling business presents an unusual situation, however, since it is one of the very few jobs where women routinely—and often significantly—earn more than men. Both female and male models have alleged various types of sexual harassment, including “casting couch” situations where they are told they must acquiesce to demands for sexual activity in order to advance in their careers.

Federal, state, and municipal laws in New York City prohibit sexual harassment, classifying it as a form of sex discrimination. Unlawful sexual harassment may take two broad forms. The “casting couch” scenario described above is an example of “quid pro quo sexual harassment,” where sexual activity of some sort is made a condition of obtaining employment, or of accessing various features and benefits of employment. The modeling business also presents scenarios that could constitute “hostile work environment.” This type of sexual harassment involves unwanted sexual behavior in the workplace, ranging from jokes or remarks to nonconsensual contact, which is pervasive enough to interfere with the complainant’s ability to work.

Models often exist somewhat outside of traditional employee/employer relationships, which can affect their ability to assert a claim under the law. They are represented by agencies, who enter into agreements with fashion brands and other companies. Those companies might be the ones to hire the photographer. According to the New York Times, the agencies and the brands point fingers at each other with regard to who is responsible for protecting models from sexual harassment and abuse at the hands of photographers and others. The photographers, the Times article states, “say they do what they do to get the best picture — which is what the clients want.”
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New York employment discrimination laws (as well as those around the country) tend to focus on the actions of individual managers, supervisors, or others; or on individual discriminatory policies or practices by employers. This approach is useful and necessary for obtaining justice for individual employees who have endured sexual harassment. It is proving, however, to be insufficient for addressing broader systemic problems that enable and contribute to sexual harassment and employment discrimination in the first place. Liability for damages in a sexual harassment lawsuit might not provide incentive for widespread reforms in companies with vast resources. Earlier this year, the State of New York tried a different approach. Instead of acting in its capacity as an enforcer of employment discrimination laws, it acted in its capacity as a corporate shareholder, alleging that a former CEO accused of sexual misconduct breached his fiduciary duties. New York City’s public pension funds later joined the lawsuit alongside the state funds. DiNapoli et al v. Wynn et al, No. A-18-770013-B, verif. am. complaint (Nev. Dist. Ct., Clark Cty., Mar. 23, 2018).

Under employment statutes like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL), unlawful discrimination on the basis of sex includes sexual harassment in two broad categories. Quid pro quo sexual harassment consists of demands for sexual activity in some form as a condition of obtaining or maintaining employment. Hostile work environment involves unwelcome sexual conduct, ranging from sexual jokes or remarks to outright sexual contact or assault, that is so pervasive that it interferes with an employee’s ability to do their job. These laws allow employees to file complaints, followed by lawsuits, seeking a variety of damages.

Lawsuits for employment discrimination can lead to changes within a company, such as when a public agency like the Equal Employment Opportunity Commission requires new company policies, subject to monitoring and review, as part of a settlement. Unlike this type of lawsuit, which imposes change from the outside, shareholder derivative suits are brought by corporate insiders as a means of enforcing a corporation’s rights or protecting its interests. See N.Y. Bus. Corp. L. § 626. A lawsuit brought under Title VII or the NYCHRL typically casts the employer on the side of the alleged harasser, seeking to hold the company liable for the actions of its agent. A shareholder derivative suit arguably allows a company to distance itself from the alleged acts of individuals. It is no substitute for a lawsuit that allows an aggrieved employee to recover damages directly, but it could be a useful method of demonstrating that corporations will not tolerate sexual harassment among their executives.
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For the past year, the #MeToo movement has sought to shine a light on workplace sexual harassment. It has shown that, despite laws like Title VII of the Civil Rights Act of 1964, sexual harassment in New York City and across the country remains a major problem. While lawmakers and legal advocates examine the laws addressing sexual harassment, leaders in various industries are exploring ways to address the issue before the courts must get involved. The Producers Guild of America (PGA), a trade association representing film and television producers, issued new guidelines on sexual harassment in January 2018. The guidelines do not have the force of law, but they represent best practices recommended for both PGA members and others. The PGA also announced that Wonder Woman 1984, the sequel to the 2017 film Wonder Woman, would be the first production to adopt the new guidelines. If you have questions about how you’ve been treated at your job, speak to a New York sexual harassment attorney.

Experience unfortunately indicates that existing antidiscrimination statutes can only provide so much protection against sexual harassment. Title VII prohibits sex discrimination and sexual harassment in employment, but the legal definition of “employment” can exclude a wide range of people and jobs. The entertainment industry, where #MeToo began, offers an example of this problem. Many of the alleged acts of sexual harassment did not involve a specific job, such as a role in a film. Instead they were often presented as a way for individuals, usually actresses but also actors, to “pay their dues” in Hollywood.

The PGA’s Anti-Sexual Harassment Guidelines, first published on January 19, 2018, are intended to help movie and television producers respond to incidents of sexual harassment, and prevent sexual harassment from occurring in the first place. They provide definitions of the two main forms of sexual harassment recognized by law as unlawful sex discrimination: quid pro quo harassment and hostile work environment. The guidelines instruct producers, “first and foremost,” to comply with all relevant state and federal laws. From there, they recommend “in-person anti-sexual harassment (ASH) training” for all cast and crew members, prior to the start of production, that focuses on “a culture of respect that starts at the top.” Producers should provide clear systems for reporting alleged harassment, investigate all claims, and prevent retaliation.

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