Articles Posted in Hostile Work Environment

The issue of sexual harassment in the workplace and elsewhere has received significant attention in recent years, but much progress remains to be made. As New York City sexual harassment attorneys, we continue to hear from workers in many different industries about their experiences. Sexual harassment is not limited to the workplace. Last summer, we wrote about how sexual harassment in the video game industry affects both employees of the companies that produce games and the gamers that play them. Online gaming, live-streaming, and other features of the video game industry have long had serious problems with harassment. The law offers some tools that employees can use to fight back. Gamers and others who participate in gaming communities do not have the same legal protection, but they are not helpless. At the end of 2020, one of the biggest companies that provides live-streaming services for gamers announced a new policy that cracks down on harassment on its platform.

Laws like the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) prohibit sexual harassment in the workplace, viewing it as a form of sex discrimination. Employers violate these laws when someone in a supervisory or managerial role requests sexual activity of some sort as a condition of employment. They also commit an unlawful employment practice when they allow employees, customers, or others in the workplace to perpetrate a hostile work environment.

Many employment laws only protect employees against unlawful activity by their own employer. The NYSHRL expands its protections against sexual harassment beyond employees. Independent contractors, vendors, unpaid interns, and others who are in a workplace for business reasons are also protected against all forms of unlawful discrimination. Domestic workers are protected against sexual harassment in their workplaces. It is not clear, however, if the NYSHRL or similar statutes protect individuals who participate in online gaming, but are not directly employed by any of the businesses involved.

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Asserting a claim for sexual harassment usually requires alleging and then describing objectionable behavior by one or more people. New York City sexual harassment attorneys must always take care that the allegations made in court filings are backed up by evidence. Individuals accused of sexual harassment may decide to strike back in court through counterclaims for defamation. State law protects plaintiffs and their attorneys, however, from liability for defamation for statements made as part of official court proceedings. A lawsuit filed in 2020 alleges sexual harassment against a co-worker and retaliation by their employer. The defendant co-worker filed a counterclaim for defamation, and included statements made in the plaintiff’s complaint as part of the allegedly defamatory speech. The plaintiff has moved to dismiss the counterclaim.

Under both the New York State Human Rights Law and the New York City Human Rights Law, unlawful sex discrimination includes certain forms of sexual harassment. One unlawful form of sexual harassment, known as hostile work environment, occurs when one or more people make unwelcome sexual comments or engage in unwelcome behavior related to sex, and the conduct is so pervasive or severe that it interferes with a person’s ability to perform their job duties. In order to make a hostile work environment claim, it is necessary to describe the harassing conduct in court pleadings.

Defamation is a type of personal injury claim for harm caused by false statements. It requires a difficult burden of proof, since it asks a court to penalize someone for the content of their speech despite First Amendment protections. The elements of a defamation claim under New York law are complicated, and depend in part on the type of allegedly defamatory statement, and in part on the extent to which the person claiming defamation is known to the public. The first two elements in any defamation claim under New York law are (1) a false statement (2) made to another person “without privilege or authorization.” Court proceedings offer a form of privilege.
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Workers in New York City are protected by multiple antidiscrimination statutes. New York City sexual harassment lawyers can choose from federal, state, and local laws when determining how best to advocate for their clients’ rights. This includes employment laws like the New York City Human Rights Law and education laws like Title IX of the Education Amendments of 1972. Individuals who have endured sexual harassment may also be able to assert common-law claims based on negligence. Employers have significant incentive to maintain policies on harassment prevention, along with robust methods of enforcement. A news story reported in late 2020 demonstrates how employers can use employment policies to address complaints of harassment against employees in supervisory positions. The story involves a now-former museum curator accused by a former student of sexual harassment and bullying.

Sexual harassment is considered to be a form of discrimination on the basis of sex in two types of situations. First, a supervisor or manager cannot make sexual requests or demands of an employee when refusal could adversely affect the employee’s job. The threat to the employee’s job could be explicit, such as when a manager openly expects sexual contact with an employee in exchange for favorable shift assignments. It can also be more subtle than this, as long as there is a clear causal connection between the refusal of the demands and adverse consequences.

The second type of unlawful sexual harassment occurs when pervasive or severe sexual conduct in the workplace interferes with an employee’s ability to perform their job duties and creates what an objective observer would consider a hostile work environment. An employer must know about the objectionable conduct, or they must be in a position where they should know about it. If they fail to take reasonable measures to address the problem, they could be liable to the aggrieved employee.

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The COVID-19 pandemic has caused economic turmoil all over the country and the world. It has hurt restaurants more than many other kinds of businesses. The impact goes beyond the revenues of the restaurants themselves. Even without a pandemic, New York City sexual harassment lawyers see a substantial number of claims from workers in restaurants who rely on tips for much of their income. The problem seems only to have gotten worse when restaurants have been open this year. A report issued in early December by One Fair Wage (OFW), an organization that advocates for reform of wage laws affecting tipped employees, found substantial decreases in tips received by servers during the pandemic, along with an increase in incidents of sexual harassment. These two issues are closely related. Tipped workers’ reliance on tip income makes them particularly vulnerable to sexual harassment by supervisors, co-workers, and customers.

Laws like the New York City Human Rights Law, the New York State Human Rights Law, and Title VII of the Civil Rights Act of 1964 view sexual harassment as a type of unlawful discrimination on the basis of sex. Sexual harassment can occur in two general forms, both of which are unfortunately common in the restaurant industry. Quid pro quo sexual harassment takes place when a supervisor, manager, or another person with authority over an employee makes submission to sexual demands of some sort a condition of their employment. The other type involves pervasive or severe conduct of a sexual nature that is unwelcome and which a reasonable person would find to create a hostile work environment.

Under federal law and many state laws, including New York, employers are not obligated to pay tipped workers as much in cash wages as other employees. Instead, they must pay a lower minimum cash wage, with a “tip credit” for the difference between that amount and the regular minimum wage. Servers in New York City have a higher minimum wage than servers in the rest of the state, and state law sets a higher minimum wage than federal law.

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There are two sides to every story, as the saying goes. This is not usually true in the real world, but legal disputes are not like the real world. There are two sides in a lawsuit, each telling a different story. A plaintiff alleging sexual harassment will tell a story about misconduct in the workplace. The defendant’s story might include a denial that those events actually happened. At Phillips & Associates, our attorneys’ concern is making certain that our clients’ stories have evidence behind them. Asserting a claim for sexual harassment without enough evidence could result in the dismissal of one’s claims. It could also lead to liability for defamation, although this is a difficult claim to prove. A New York City federal court recently dismissed a defamation lawsuit filed by a former hedge fund manager accused of sexual harassment. The lawsuit targeted an online publication, not any of his accusers, but it illustrates how these two areas of law often intersect.

Employment statutes like the New York City Human Rights Law (NYCHRL) prohibit discrimination on the basis of sex, including sexual harassment. A sexual harassment complaint filed in court must include enough factual allegations to support a claim under the NYCHRL or another antidiscrimination law. The plaintiff will have the opportunity to tell their story as the case progresses, and the defendant will be able to present their version of events.

“Defamation” is a broad legal term that covers spoken false statements (slander) and written false statements (libel). Courts in the U.S. set a high bar for anyone alleging defamation. A defamation claim in New York requires proof, among other elements, that the statement in question was false and that it was made without any sort of legal privilege.

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Filing a sexual harassment lawsuit requires putting highly unpleasant allegations on paper, and then filing them in the public record. People of all genders have felt able to come forward in the past few years with accounts of sexual harassment in the workplace and elsewhere. Some people bring legal claims, while others tell their stories to the media. A few alleged harassers have responded with legal claims of their own, often focusing on alleged falsehoods in their accusers’ stories. Parties on both sides of New York City sexual harassment claims sometimes bring defamation claims against their opponents. Defamation is a personal injury claim alleging that a defendant made a false statement about the plaintiff that resulted in financial harm. The New York Legislature passed a law this summer that targets defamation lawsuits intended not to recover damages for actual losses, but to silence people by threatening them with expensive litigation. These are often known as “strategic lawsuits against public participation, or “SLAPPs,” and they sometimes appear in response to sexual harassment claims.

A sexual harassment complaint must provide enough information about the alleged behavior to enable the court, the defendant, and others to understand the nature of the plaintiff’s claims. Sexual harassment is a type of sex discrimination under both New York and federal law. A plaintiff must demonstrate that one or more people in the workplace engaged in hostile or harassing behavior based on sex. This may include, for example, unwelcome sexual conduct or remarks that are either pervasive or severe enough that a reasonable person would find that it created a hostile work environment.

A plaintiff’s complaint must set forth the type of behavior that led to their claims. This often includes direct accusations of harassment against one or more individuals. As a case progresses, a plaintiff must continue to gather and present evidence for their claims.

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