Articles Posted in Hostile Work Environment

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 occurs whenever someone abuses their authority in the workplace to try to coerce someone into some kind of sexual activity, or whenever one or more people subject someone to an unwelcome and hostile work environment based on sex. New York City sexual harassment attorneys routinely bring lawsuits on behalf of workers who have experienced these types of misconduct. The New York Attorney General (AG) is also taking a role in fighting against workplace sexual harassment under state, federal, and city law. The AG’s office announced this summer that it had concluded an investigation into allegations of sexual harassment and retaliation at a Long Island construction company. It also stated that it had reached a settlement agreement with the company, in which the company will pay $1.5 million in damages.

A legal claim for sexual harassment can arise from specific acts or patterns of conduct by individual employees, as well as from systemic failures by an employer that allow sexual harassment to persist in a workplace. Claims alleging a hostile work environment often require proof not only that an employee faced unwelcome conduct of a sexual nature that was either pervasive or severe, but also that the employer knew or should have known about the problematic behavior and failed to take reasonable actions to address it.

Since October 2018, state law has required employers to provide sexual harassment prevention training for all of their employees. Employers may use a model training program developed by the state, or they can use their own as long as it meets certain minimum standards.

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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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Sexual harassment takes many forms. While the classic example of workplace sexual harassment might involve a male supervisor making sexual demands of a female employee, New York City sexual harassment attorneys know that it can occur between individuals of any gender. The key elements of unlawful sexual harassment are that the conduct is unwelcome, and that it is based on gender in some way. A lawsuit recently filed in a Manhattan federal court presents a scenario that might only seem out of the ordinary to people who mainly know about sexual harassment from its depictions in popular culture. In this case, a former hotel employee, “a black man who identifies his sexual orientation as gay,” is alleging sexual harassment by his female former supervisor and other unlawful acts.

Employment laws in New York City, New York State, and at the federal level prohibit discrimination on the basis of sex or gender. Sexual harassment is considered a form of sex discrimination when the harassing conduct creates a “hostile work environment.” This occurs when unwelcome sexual conduct that is either pervasive or severe creates an atmosphere that a reasonable observer would consider “hostile,” and that renders a person incapable of performing their job duties to the best of their ability. The conduct can range from lewd comments or jokes in the workplace to direct sexual overtures or worse.

The plaintiff in the lawsuit mentioned above states in his complaint that he began working for the defendant hotel in April 2018. His job involved booking and managing reservations for the hotel and its onsite restaurant. He alleges that the sexual harassment by his supervisor began “nearly as soon as [he] began his employment.” He states that he never hid his sexual orientation from his employer or coworkers, but the supervisor allegedly made frequent remarks regarding his sexuality. He claims that this included “mak[ing] lewd comments about the physical attributes of male guests and celebrities and ask[ing] [his] opinion of their physical attributes.

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Sexual harassment is a form of sex discrimination under most employment discrimination statutes in the U.S. New York City sexual harassment attorneys can bring claims under laws at three levels — federal, state, and city — depending on the circumstances of a particular case. A defendant can try to dispose of a case before it goes to trial by various means, including summary judgment. This is a type of judgment where a judge finds that no “material issues of fact” are in dispute. In February, a New York City court denied a motion for summary judgment in a sexual harassment lawsuit.

The New York City Human Rights Law (NYCHRL) prohibits discrimination in employment on the basis of gender, including sexual harassment. One type of sexual harassment claim alleges that unwanted sexual conduct was pervasive or severe enough that it created a hostile work environment and prevented the plaintiff from performing their job duties. The NYCHRL also bars employers from retaliating against an employee who reports unlawful discrimination.

When a defendant moves for summary judgment on a claim under the NYCHRL, courts apply a “burden-shifting analysis” established by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If the plaintiff can show that they belong to a protected class, that they were qualified for their job, and that they suffered some adverse consequence because of their membership in the protected class, the burden of proof shifts to the defendant to show a nondiscriminatory reason for its action. The plaintiff may then have a chance to show that the employer’s reasons were a pretext for discrimination.

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While the #MeToo movement has made progress over the past several years in exposing sexual harassment in workplaces throughout the country, much work remains to be done. New York City sexual harassment attorneys know well that certain industries remain, in many ways, a “boys’ club” where female employees are expected to endure, at best, bawdy jokes and other inappropriate conduct. A lawsuit filed in a Manhattan federal courthouse in May 2020 alleges this kind of environment in a financial firm. The plaintiff alleges “relentless, egregious discrimination” on the basis of sex, followed by termination in retaliation for speaking out about it.

Sexual harassment is a type of sex discrimination in certain situations under New York City law, New York State law, and federal law. This includes a “hostile work environment” in which unwelcome conduct of a sexual nature is so severe or pervasive that a reasonable person would find it to be intolerable. Hostile work environments often involve a culture of sexual and/or sexist jokes or comments. A single incident, if severe enough, can support a hostile work environment claim, but most claims allege ongoing patterns of behavior.

The plaintiff states in her complaint that she began working for the defendant, a hedge fund located in New York City, in the summer of 2016 as an investment associate. Almost immediately, she claims, she noticed “a sexually charged and misogynistic work environment.” She describes her desk as being “part of a large table shared by seven people…located in the middle of the trading floor…within clear earshot of every person who sat on the floor.” The company allegedly employed few women during her time there. They all, she claims, had the title of “associate” and reported to male supervisors.

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New York City employment discrimination laws protect workers from adverse actions based on factors like sex, race, religion, sexual orientation, or gender identity or expression. Under federal, state, and city law, sexual harassment is viewed as a type of discrimination on the basis of sex or gender. Laws like Title VII of the Civil Rights Act of 1964 allow individuals to file suit against employers who have discriminated against them, or who have failed to take reasonable action to prevent a co-worker from discriminating against or harassing them. In April, a former officer with the New York City Police Department filed a federal lawsuit alleging sexual harassment under Title VII and several other statutes. The lawsuit names the city and five NYPD officers as defendants.

Hostile work environment” is one type of sexual harassment recognized as unlawful sex discrimination. In order to prevail on a claim, a plaintiff must show that one or more people in the workplace engaged in unwelcome conduct that was either severe or pervasive enough to interfere with their ability to perform their job duties. Typically, they must show that a reasonable person would consider the conduct to be abusive, intimidating, or hostile beyond mere annoyance. Most hostile work environment claims involve ongoing behavior, but a single incident can support a hostile work environment claim, if it is especially severe.

The plaintiff in the lawsuit mentioned above alleges that a lieutenant, who is named as a defendant, “handpicked her” in February 2017 to work as his “Operator.” This job primarily involved driving him on patrol. She states that she felt he gave her “too much attention,” but did not complain out of fear of retaliation. While in the police vehicle, she claims that the lieutenant routinely made sexually suggestive remarks to her and asked her intrusive personal questions. This also allegedly occurred in the presence of other officers, but no one intervened.

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May has been designated as “Mental Health Month” since 1949 by Mental Health America (MHA) and other organizations. The term “mental health” applies not only to diagnosed mental illnesses but also in a much broader sense to one’s emotional and psychological well-being. Twenty percent of the population will deal with mental illness at some point in their lives, according to MHA, but everyone must take care of their mental health. As New York City employment discrimination attorneys, we see the impact that acts like sexual harassment and discrimination can have on our clients. We see supervisors, managers, and others who abuse their authority, and employers who do little to stop it. Asserting one’s right to a workplace free of sexual harassment is often an important step in reclaiming control over one’s life. New York law provides remedies that can help restore a sense of justice.

Sexual Harassment as an Abuse of Power

Employment discrimination laws in New York City recognize sexual harassment as a type of unlawful discrimination on the basis of sex. Quid pro quo sexual harassment involves situations where an employee must submit to some sort of sexual demand as a condition of employment. This could be as overt as a manager demanding sexual activity in exchange for giving someone a job, but the demand could be anything of a sexual nature which the employee feels they cannot turn down.

Hostile work environment involves pervasive and unwelcome conduct that impedes a person’s ability to do their job. As with quid pro quo sexual harassment, it could be overt behavior like unwanted sexual contact or assault. It could also involve sexual jokes or banter. A hostile work environment claim usually involves a pattern of behavior that occurs over time, but a single incident could support a claim if it is egregious enough. An employee claiming a hostile work environment usually must show that the employer was aware of the conduct, but failed to take reasonable steps to prevent it.

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Employees who have experienced sexual harassment in the workplace can bring claims for relief under New York City employment discrimination laws. These laws may, at times, seem to conflict with non-disclosure agreements (NDAs), which are becoming an increasingly common feature of employment contracts and severance agreements around the country. Several months ago, the news cycle included reports on the use of NDAs to prevent former employees of a former New York City mayor, who was running for president at the time, from talking about discrimination and sexual harassment claims they had brought against his company. Recent changes to state law in New York limit employers’ ability to use NDAs with regard to discrimination claims, including sexual harassment.

Elements of a Sexual Harassment Claim

In order to prevail in a claim for sexual harassment, a plaintiff must prove that the conduct they experienced was “on the basis of sex.” The remaining elements of a sexual harassment claim depend on the type of conduct alleged:
– A claim for hostile work environment requires evidence that the conduct was unwelcome, and that it was either severe or pervasive.
– If a plaintiff is alleging quid pro quo sexual harassment, they must demonstrate that acquiescence to sexual demands were a condition of employment.
If the alleged perpetrator was not in a supervisory or managerial position over the plaintiff, they must also show that the employer knew or should have known about the harassment, but failed to act.

Use of Non-Disclosure Agreements in Employment

Employers often use NDAs in employment contracts and severance agreements to protect trade secrets and other confidential information. NDAs in severance agreements might also bar employees from disparaging the employer after the termination of the employment relationship. These can be legitimate purposes, particularly regarding the protection of proprietary information. When they prevent a former employee from speaking out about sexual harassment, they can be seen as an impediment to justice.

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