Articles Posted in Hostile Work Environment

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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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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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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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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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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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.

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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