Articles Posted in Hostile Work Environment

Domestic workers make up a significant portion of the workforce in the U.S., but few employment statutes provide protection for them against sexual harassment and other unlawful acts. New York City employment discrimination attorneys can draw on state law, which include provisions specifically covering domestic workers, but there are no nationwide protections. Last summer, members of Congress introduced the National Domestic Workers’ Bill of Rights (NDWBOR). This comprehensive bill would amend the employment discrimination, harassment, and retaliation provisions of Title VII of the Civil Rights Act of 1964. It has yet to receive a hearing in either chamber of Congress.

What Is a Domestic Worker?

New York defines a “domestic worker” as an individual “employed in a home or residence” for certain purposes, including:
– Housekeeping;
– Child care; and
– Companionship for “a sick, convalescing or elderly person.”
N.Y. Lab. L. § 2(16).

The definition does not apply to a person who is related to the employer, or who provides services “on a casual basis.” Id. State law also omits people who provide babysitting or elder care services “on a casual basis,” as described in the Fair Labor Standards Act (FLSA). 29 U.S.C. § 213(a)(15).
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Employment statutes that prohibit discrimination on the basis of sex and other factors require employers to take reasonable actions to prevent discrimination and harassment in the workplace, and to remedy the situation when they know (or should know) that discrimination or harassment has allegedly occurred. New York sexual harassment attorneys can allege an employer’s failure to remedy a known situation as a distinct unlawful employment practice in violation of city, state, or federal law. A lawsuit filed in early 2020 by a New York City resident claims that her employer failed to act after its own investigation substantiated her allegation of assault by a co-worker. She is asserting causes of action for sexual harassment, sex discrimination, and retaliation.

Sexual harassment is a form of unlawful discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964, as well as New York City and State law. The Equal Employment Opportunity Commission (EEOC), which investigates alleged violations of Title VII, states that “petty slights” and “annoyances” typically do not “rise to the level of illegality.” It also maintains that “isolated incidents” do not constitute unlawful harassment “unless extremely serious.”

Employers are vicariously liable for many unlawful acts perpetrated by supervisors and managers against employees. If the alleged harassment is carried out by someone who is not in a supervisory position over a plaintiff, such as a co-worker or customer, the plaintiff must demonstrate that the employer knew or should have known about the harassment, and that they failed to make prompt and reasonable efforts to remedy the situation.

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Multiple employment statutes protect workers’ rights in New York City. Sexual harassment attorneys can bring claims in state court under city or state law, or they can file in federal court in some situations. Each of these statutes view sexual harassment as a form of discrimination on the basis of sex. This is true regardless of the sex or gender of the individuals involved. The archetypal sexual harassment scenario involves harassment of a female employee by one or more male managers, supervisors, or coworkers. This kind of case appears to comprise the majority of New York sexual harassment complaints filed with state and federal enforcement agencies. A lawsuit recently filed in a Manhattan court, however, demonstrates how female supervisors can allegedly commit unlawful sexual harassment against male employees.

The New York City Human Rights Law prohibits discrimination on the basis of numerous factors, including sex and gender. The New York State Human Rights Law includes protections against workplace discrimination on the basis of most of the same factors as city law. At the federal level, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of five factors, including sex. Sexual harassment has been recognized as unlawful sex discrimination nationwide since the U.S. Supreme Court’s ruling in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), which involved harassment of a female employee by a male supervisor. Twelve years after issuing that ruling, the court recognized same-sex sexual harassment as a violation of Title VII in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

The Equal Employment Opportunity Commission (EEOC) investigates alleged violations of Title VII and other federal statutes. A complaint to the EEOC is a prerequisite to filing a federal lawsuit. Statistics published by the EEOC only show complaints based on Title VII claims, not New York City or New York State law. The EEOC’s numbers still offer insight into what workers around the country are reporting. From fiscal year 2010 to 2019, the EEOC received an average of about 7,284 complaints of sexual harassment per year. Men made an average of 16.8 percent of those complaints.

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New York sexual harassment attorneys can choose from among several employment statutes dealing with sex discrimination. This gives the city some of the most robust employee protections in the country, and yet sexual harassment and other unlawful workplace practices remain serious problems. An advocacy group seeking to improve the state’s sexual harassment laws has announced its support for several pending bills in Albany over the past year, including a bill that targets harassment by individuals working in government. Another bill would address ambiguity in the legal standard for unlawful harassment. Both bills are currently pending in State Assembly or Senate committees.

New York State Sexual Harassment Law

The New York State Human Rights Law (NYSHRL), N.Y. Exec. L. § 290 et seq., prohibits employers from discriminating on the basis of sex and numerous other factors. Sexual harassment is considered unlawful sex discrimination in two scenarios. First, quid pro quo sexual harassment occurs when a person must submit to some sort of sexual demand as part of their employment. The demand can range from tolerating inappropriate remarks or jokes to sexual activity. The second form of sexual harassment occurs when unwelcome sexual conduct is severe or pervasive enough to create a hostile work environment.

Pending Legislation

A group known as the Sexual Harassment Working Group is promoting several pending bills that take on deficiencies in state law.

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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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A New York City-based cable news network that has been no stranger to sexual harassment allegations is facing another lawsuit by a host. The complaint, filed in early December 2019, notes that the network has paid more than $100 million to settle sexual harassment claims in recent years. The network’s troubles pre-date the #MeToo movement, which largely originated in Hollywood, by more than a year. A former news anchor filed suit against the network in July 2016, and within two weeks, at least seven more women came forward with accounts of sexual harassment. The network’s longtime CEO and chairman resigned several days later. The network settled the first lawsuit in September 2016, but more allegations and lawsuits followed. The allegations include both quid pro quo sexual harassment, in which a person risks losing their job or other negative consequences if they turn down sexual advances; and hostile work environment. The new lawsuit alleges numerous acts that, if proven, would result in liability under New York City sexual harassment law.

Both city and state law in New York City prohibit discrimination in employment on the basis of sex or gender. See N.Y.C. Admin. Code § 8-107(1)(a), N.Y. Exec. L. § 296(1)(a). Two forms of sexual harassment constitute unlawful sex discrimination under these statutes. As mentioned earlier, quid pro quo sexual harassment occurs when a supervisor or manager makes acquiescence to sexual demands a condition of employment. This could involve a situation where a job applicant will only get the job if they have sex with a manager, or where a supervisor gives preferable work assignments to people who meet their sexual demands.

The other type of unlawful sexual harassment, hostile work environment, occurs when pervasive and unwelcome sexual conduct makes it essentially impossible for an individual to perform their job duties. Management must be aware of the offensive conduct, and they have a legal obligation to take reasonable steps to prevent further harassment. If they fail to do so, the employer may be liable under state or city law.

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The past few years have brought many accounts of sex discrimination, frequently including sexual harassment, in the media, entertainment, and tech industries. New York City sexual harassment attorneys often hear about sexual harassment in these workplaces. We are familiar with the way some media and tech companies can foster work environments that either allow or ignore sexual harassment. Companies in both tech and entertainment have been described as “boys’ clubs,” with work environments that significantly disadvantage and exclude women. A prominent video game company recently announced that it has settled a putative class action brought by current and former female employees alleging widespread sexual harassment, among other claims. The settlement includes $10 million in damages to be paid to class members.

Sexual harassment constitutes an unlawful form of sex discrimination under laws like the New York City Human Rights Law in two types of scenarios. Quid pro quo sexual harassment occurs when a supervisor or manager demands sexual activity or contact in exchange for getting a job, keeping a job, or obtaining some other sort of employment-related benefit. The “casting couch” is a well-known example, in which an individual auditioning for a role is expected to have sex, or something similar, with a director or producer in order to get the part. Another example involves a restaurant manager who only gives the best shift assignments to servers who submit to sexual demands.

The other scenario in the legal definition of sexual harassment occurs when pervasive, unwelcome conduct of a sexual nature creates a hostile work environment. A single incident can support a hostile work environment if it is severe enough. Most hostile work environment claims involve multiple acts, such as ongoing remarks or jokes of a sexual nature, which a reasonable person would expect to cause offense and interfere with a professional workplace.

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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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