Articles Posted in Hostile Work Environment

The Office of the New York State Attorney General (AG) announced in early January 2020 that it had reached a settlement with a restaurant owner accused of sexual harassment. New York City sexual harassment law protects workers from harassment on the basis of sex through statutes at the federal, state, and local levels. The AG’s complaint included alleged violations of city and state law. Under the settlement agreement, the restaurant owner will pay a six-figure sum to eleven former employees, followed by a share of the restaurant’s profits for the next decade.

Sex discrimination is considered an unlawful employment practice under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL). Court decisions have established that sexual harassment is a type of sex discrimination. Both state and city law specifically mention sexual harassment as an unlawful practice. The NYSHRL, for example, mentions sexual harassment in its definition of “employer.” N.Y. Exec. L. § 292(5). The NYCHRL identifies sexual harassment as a violation of public policy. N.Y.C. Admin. Code § 8-101.

Unlawful sexual harassment occurs when unwelcome sexual conduct is severe or pervasive enough to create a hostile work environment, or when submitting to sexual conduct is a condition of one’s employment. The objectionable conduct may range from bawdy jokes to outright sexual assault.

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The television industry is constantly trying to find new ideas and stories to present to the public. The genre commonly known as “reality television” allows producers to create large amounts of content with relatively small budgets. It has proven to be a very popular and lucrative genre over the past twenty years, but it has also generated its share of controversy. In late 2019, the producers of one of the longest-running reality shows in the country addressed allegations that are familiar to New York City sexual harassment attorneys with knowledge of the entertainment business. Several female contestants on a reality competition show complained of inappropriate behavior by a male contestant. The showrunners eventually removed the male contestant from the show, and have pledged to change their policies for future seasons of the show.

The set of a television program is a workplace, just like an office, store, factory, or warehouse. Everyone working on or around a set is entitled to a workplace free of unlawful sexual harassment. Laws like the New York City Human Rights Law and Title VII of the Civil Rights Act of 1964 view sexual harassment as a form of unlawful sex discrimination. Pervasive and unwelcome sexual remarks, unwanted touching, and other nonconsensual behavior on a set constitute sexual harassment in violation of the law.

The reality television controversy mentioned earlier involves one of the first such shows to find a large audience in the U.S. Its first season aired in the spring and summer of 2000, and its network has broadcast new seasons at a rate of about two per year. The controversy occurred during the filming and airing of the show’s thirty-ninth season. The show’s premise involves organizing groups of strangers into teams and placing them in a remote location, often on a tropical island in the Pacific or Indian Ocean. The contestants must fend for themselves to a large extent, and they must participate in various challenges to gain points. Each week, one or more contestants is eliminated from the show, until only one person remains.

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In the past few years, vast numbers of people have spoken out about New York sexual harassment. Before allegations of widespread harassment and abuse by a prominent Hollywood producer sparked the #MeToo movement in late 2017, a series of allegations emerged a year earlier in New York City. Sexual harassment lawsuits against a major news network and its CEO resulted in the termination of several major figures, including the CEO himself. The public is not aware of the details of the settlements, or many details of the cases themselves, because of non-disclosure agreements (NDAs) signed by the plaintiffs. NDAs are fairly common as a way for employers to protect trade secrets, but they can also serve to keep the details of sexual harassment lawsuits out of the news. This might protect employers’ interests, but as the cases at the heart of #MeToo suggest, NDAs can place employees at risk by denying them important information. A former anchor for the news network has asked to be released from the NDA she signed as part of her settlement.

Antidiscrimination laws like the New York State Human Rights Law prohibit discrimination in the workplace on the basis of sex. This includes situations when submission to sexual demands is a condition of employment, known as quid pro quo sexual harassment; or when unwelcome sexual conduct creates a hostile work environment. The claims arising from #MeToo often describe people in a position of power, usually but not always men, using that power to coerce employees, often but not always women, into sexual situations. This could involve demands for sexual contact of some sort, or a work environment filled with sexual banter.

NDAs have traditionally sought to protect a company’s trade secrets by restricting current and former employees’ ability to disclose confidential or proprietary information. NDAs that prohibit disclosure of sexual harassment allegations exist on shakier legal ground. The National Labor Relations Board ruled in 2002 that employers cannot generally prohibit their employees “from discussing their sexual harassment complaints among themselves.” The NDAs that could be enforceable essentially involve a contractual exchange: the employer pays a settlement, and the employees signs an NDA. If the employee violates the NDA, they could be obligated to return the entire settlement amount. It would not be overstating it to say that this involves buying people’s silence. New York law sets limits on NDAs in sexual harassment cases, but allows them in certain situations.

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As the holiday season swings into full gear, many employees and employers will face issues that may arise at company holiday parties. These parties are often designed to celebrate a successful year and reward employees for their dedication and hard work. However, the nature of these events often leads individuals to lower their inhibitions and potentially engage in unacceptable and offensive behavior. New York employees facing such discrimination at these office events should contact a New York employment discrimination attorney to address their claims.

Both New York and federal laws that protect against employment discrimination extend to off-hours and off-site work events. Additionally, employers should take precautionary steps by advising their employees on acceptable workplace behavior. However, despite the training, education, and risk of termination, employers and co-workers still engage in this unlawful behavior.

In addition to federal protections covering race, color, religion, national origin, sex, disability, age, citizenship status, and genetic information, New York City law prohibits qualified employers from discriminating against an employee based on their creed, actual or perceived age, marital or partnership status, pregnancy, military status, or caregiver status. Additional protections exist covering criminal and arrest history, sex offenders, and domestic violence victims. The federal protections apply to employers with more than 15 employees, and New York City protections apply to employers with more than four employees. Claims regarding sexual harassment do not have an employee minimum.

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Many New York employers are recognizing the importance of flexibility, camaraderie, and team building in developing a reliable and robust workforce. To meet these goals, many employers organize office retreats, family events, and annual holiday parties. However, these events, especially ones including alcohol, can lead to unwanted sexual harassment. Employees who suffer sexual harassment by their New York employer should understand their rights and remedies. Individuals who suffer sexual harassment by their employer or at their workplace should contact a New York sexual harassment attorney to discuss potential recourses.

According to a recent news report, research indicates that over half of companies throwing holiday and end-of-the-year parties will serve alcohol, a five percent increase from 2017. Moreover, studies show that serving alcohol increases the risk of workplace sexual harassment. Employers should take steps to mitigate the risk of unwanted sexual advances and harassment by educating their employees on appropriate standards of behavior and consent.

New York employees who do suffer sexual harassment at an off-site or off-work hours event may still hold their company liable for their harm. Typically, employees understand what constitutes sexual harassment in an office setting, but after-hours harassment may not be as clear. New York law defines sexual harassment as any unwanted sexual advances. These advances can be verbal, physical, or sexual. Some typical example of sexual harassment at a holiday party may include:

• Inappropriately commenting on a co-worker’s body or attire
• Coercing someone to drink to lower their inhibitions
• Attempting to kiss or grope a co-worker
• Making off-color sexual jokes

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In order to assert a claim under New York City sexual harassment laws, a plaintiff must usually demonstrate that an employment relationship existed between the plaintiff and the defendant. When the plaintiff and the alleged harasser received paychecks from the same entity, establishing this relationship is straightforward. Many workplaces present a much more complicated picture, though. Businesses often use a complex system of outsourcing through contractors in an effort to cut costs. This can cause confusion with regard to liability. New York courts, fortunately, have ruled that the definition of “employer” is not very strict in claims under Title VII of the Civil Rights Act of 1964, which governs many New York City sexual harassment claims.

Employers may be liable for third-party sexual harassment, meaning harassment against an employee by someone other than a fellow employee, such as a contractor, customer, or client. If the employer was aware that harassment was occurring, and they failed to take reasonable actions to prevent it or remedy the situation, they may be held liable under Title VII. This is similar to the standard for a hostile work environment created by a co-worker or another employee who is not in a position of authority over a plaintiff. The alleged harasser might not have direct control over the plaintiff’s employment, but they still have the power to make the workplace unbearable.

A 1981 decision by the U.S. District Court for the Southern District of New York (SDNY) addressed this type of situation. The plaintiff was employed by a company that had a contract to provide property management services at a Manhattan office building, although there was some confusion as to the exact employment relationship. She worked as a lobby attendant, which partly involved “offer[ing] assistance and information to people entering the building and k[eeping] those who did not belong in the building from loitering.”

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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.

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