Hostile Work Environment Category Archives — New York Employment Attorney Blog Published by New York Employment Lawyers

June 4, 2019

Plaintiffs in New York City Sexual Harassment Lawsuit Make New Allegations in Affidavits Filed in Opposition to Motion to Dismiss

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.”

May 8, 2019

New York City Street Art Projects Take on Anti-Black Racism and Gender-Based Harassment

by Phillips & Associates

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.
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May 1, 2019

Court Upholds Largest-Ever Civil Penalty in New York City Sexual Harassment Case

by Phillips & Associates

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.”
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May 1, 2019

Is Workplace Bullying Illegal in New York City?

by Phillips & Associates

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.
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April 18, 2019

Is Workplace Harassment Illegal in New York?

by Phillips & Associates

Workplace harassment is almost always a nuisance. It is not necessarily always illegal under laws like the New York City Human Rights Law (NYCHRL). Harassment only violates the law when it is based on a protected category like race or sex, and when it directly impacts a person’s employment or the quality of the work environment. When assessing whether harassment crosses the line between a nuisance and an unlawful employment practice, New York City discrimination attorneys must carefully examine the circumstances of each case.

What Is Harassment?

The Equal Employment Opportunity Commission (EEOC), which enforces federal antidiscrimination laws like Title VII of the Civil Rights Act of 1964, defines harassment as “unwelcome conduct that is based on” a protected category. It states that harassment based on one or more of these categories becomes unlawful in two situations:
1. Quid pro quo harassment: The complainant must “endur[e] the offensive conduct” as “a condition of continued employment”; or
2. Hostile work environment: The allegedly harassing conduct is so “severe or pervasive” that it “create[s] a work environment that a reasonable person would consider intimidating, hostile, or abusive.”

If the alleged harasser is a supervisor with authority over the complainant’s employment, the employer may be held liable even if management did not know about the conduct. See Vance v. Ball State University, 570 U.S. 421 (2013). If the alleged harasser is a co-worker, customer, or other individual, the complainant must demonstrate that the employer knew about the harassment and failed to remedy it.
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April 18, 2019

New York State Releases Guidelines for New Sexual Harassment Laws

by Phillips & Associates

A budget bill passed by the New York State Legislature in 2018, S. 7507/A. 9507, added several protections against sexual harassment for workers throughout the state. Part KK, Subpart E of the bill required the state to produce a “a model sexual harassment prevention guidance document and sexual harassment prevention policy” and “a model sexual harassment prevention training program.” The state issued these documents in November 2018. The bill requires employers to adopt the state’s model policy and use its model training program, or to develop their own policies and programs that “equal or exceed the minimum standards” established by the state. New York City passed a law in 2018, Local Law 96, that also requires employers to provide sexual harassment training.

The New York State Human Rights Law (NYSHRL) prohibits discrimination in employment on the basis of sex, sexual orientation, and other factors. N.Y. Exec. L. § 296(1)(a). The New York City Human Rights Law (NYCHRL) contains similar prohibitions, as well as express prohibitions against discrimination on the basis of gender identity and gender expression. At the federal level, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, but does not specifically mention sexual orientation or gender identity or expression. Court decisions have held that sexual harassment constitutes sex discrimination under all of these statutes.

The state released a document entitled “Sexual Harassment Policy for All Employers in New York State” in November 2018. This satisfies the state’s obligation under Part KK, Subpart E of the budget bill. The model policy states that sexual harassment may violate the NYSHRL when it is based on an individual’s actual or perceived sex, sexual orientation, gender identity or expression. It provides procedures for reporting sexual harassment. It identifies supervisors’ responsibilities when a report is made, and outlines how investigations should proceed.
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April 8, 2019

Alleged Sexual Harassment by New York University Professor Leads to Investigation, Lawsuit

by Phillips & Associates

The #MeToo movement began in 2017 with a series of allegations against men in positions of power in Hollywood and has reached numerous other workplaces. Most of the allegations have been made by women against men, but sexual harassment in New York City and around the country can happen between people of any gender. Men can sexually harass men, women can sexually harass men or women, and so on. Last year, New York University (NYU) suspended a female professor after investigating allegations of sexual harassment by a male former graduate student. The student then filed a lawsuit alleging violations of the New York City Human Rights Law (NYCHRL). Reitman v. Ronell, et al, No. 157658/2018, 1st am. complaint (N.Y. Sup. Ct., N.Y. Cty., Sep. 14, 2018).

Sexual harassment is considered a form of unlawful gender discrimination under the NYCHRL and other statutes. The NYCHRL covers both workplaces and educational institutions in New York City. Our legal system generally recognizes two categories of sexual harassment. Quid pro quo sexual harassment involves a situation where someone in a position of authority makes submitting to some form of sexual activity a condition of employment, such as a supervisor who will only assign good shifts to an employee if they agree to have sex. A hostile work environment occurs when unwelcome sexual conduct, ranging from remarks or jokes to contact or assault, directly interferes with a person’s ability to do their job.

The plaintiff was a graduate student at NYU in the Department of German from 2012 until he received his Ph.D. in 2015. He states in his complaint that he turned down offers from Yale, Brown, and Stanford Universities so that he could study under the defendant, “a world-renowned academic and author.” Reitman, complaint at 3. He alleges that the defendant “created a fictitious romantic relationship between herself and her student,” and that she “asserted complete domination and control over his life, both inside and outside of his academic endeavors.” Id. at 3-4. This allegedly included “forcibly groping, touching, and kissing him on a regular basis.” Id. at 4.
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March 19, 2019

The Role of Emoji in New York City Sexual Harassment

by Phillips & Associates

Many sexual harassment claims involve patterns of inappropriate comments. When assessing whether comments are inappropriate and of a sexual nature, New York City sexual harassment lawyers must consider verbal cues, body language, and facial expressions. Most or all of those cues are missing, however, in written communications. This is particularly true when emoji symbols are involved. “Emoji sexual harassment” is a relatively new, but quickly growing, area of law. Some lawsuits include emoji among the alleged inappropriate comments, often based on secondary meanings ascribed to particular symbols. At the same time, some courts have cited plaintiffs’ use of emoji when ruling for defendants.

Sexual harassment is a form of sex discrimination in violation of the New York City Human Rights Law (NYCHRL), the New York State Human Rights Law (NYCHRL), and Title VII of the Civil Rights Act of 1964. Unlawful sexual harassment generally takes two forms. “Hostile work environment” occurs when pervasive and unwelcome sexual behavior interferes with a person’s ability to do their job. “Quid pro quo sexual harassment” occurs when submission to some form of sexual activity is made a condition of obtaining or keeping employment. Unwanted sexual remarks or overtures are a common feature of both types of sexual harassment claim.

Emoji are a set of small images that can be inserted into text messages on smartphones, as well as in emails and social media services like Facebook. Certain symbols have taken on specific meanings. An article in Wired describes the symbols as “a primitive language.” As a result of this, the inclusion of emoji in a text message can convey unintended meanings, or plausibly-deniable meanings. Emoji symbols that depict objects that might be considered phallic, such as the corn and eggplant symbols, have taken on that secondary meaning. Even symbols that seem to have obvious meanings, like the “smiley face” emoji, can be subject to multiple interpretations.
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February 20, 2019

Lawsuit Alleges Sexual Harassment by Assistant Principal at New York City School

by Phillips & Associates

Local, state, and federal employment statutes protect New York City workers from discrimination and harassment. Laws like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL) view sexual harassment as a form of sex discrimination, and allow aggrieved individuals to file suit for damages. A lawsuit filed last year in federal court alleges a sequence of events that is familiar to New York City sexual harassment attorneys. The plaintiff claims that a supervisor subjected her to unwanted sexual remarks and advances, and that school administrators retaliated against her for reporting the harassment. Thomas v. N.Y.C. Dept. of Educ., et al, No. 1:18-cv-04459, complaint (E.D.N.Y., Aug. 7, 2018).

Title VII, the NYCHRL, and the New York State Human Rights Law (NYSHRL) prohibit discrimination in employment on the basis of sex, among other factors. See 42 U.S.C. § 2000e-2(a), N.Y. Exec. L. § 296(1)(a), N.Y.C. Admin. Code § 8-107(a). Various court decisions have identified sexual harassment as a form of sex discrimination under these statutes. One situation involves a hostile work environment in which “a man or woman [must] run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-67 (1986), quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982).

The plaintiff in Thomas states in her complaint that she began working for the New York City public school system as a teacher in 1988, and received tenure in 1996. She began working at a magnet school in Queens in 1998, where she “transitioned into a role as a Guidance Counselor.” Thomas, complaint at 4. The plaintiff identifies several individuals who served as principal of the school during her time there. She alleges that, until recently, she regularly received “positive and satisfactory formal and informal observations” from her supervisors. Id.

January 15, 2019

Increased Attention to Workplace Sexual Harassment Leads Some New York City Employers to Contemplate Other Forms of Sex Discrimination

by Phillips & Associates

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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