Articles Posted in Hostile Work Environment

In New York City, sexual harassment is viewed as unlawful sex discrimination under federal, state, and municipal law. The past year has seen numerous instances of workplace sexual harassment finally seeing some measure of attention and, in some cases, justice. For all the progress that we have seen recently, it is worth remembering that nationwide recognition of sexual harassment as a violation of antidiscrimination laws first occurred just over thirty years ago, and that the term “sexual harassment” itself is barely forty years old. A group of women in New York coined the term in 1975, in support of a woman who quit her job because of a male supervisor’s alleged unwelcome sexual advances.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of several factors, including sex. A series of court decisions have expanded the definition of “discrimination on the basis of sex” to include two sexual harassment scenarios. First, “quid pro quo sexual harassment” involves demands for some sort of sexual activity by a supervisor or manager, either as a condition for obtaining employment or as a condition for continued employment or employment benefits. Second, a “hostile work environment” occurs when a worker is subjected to unwanted sexual conduct, ranging from jokes or comments to outright assault, which interferes with their ability to perform their job duties. It took years of advocacy and litigation to get legal recognition of these claims.

Before sexual harassment had a name, women had no clear way to push back against such behavior by bosses and coworkers. The television show Mad Men might have been a “historical drama,” but the history it portrayed is very recent. In 1975, a woman quit her job at Cornell University after enduring years of unwanted advances from her boss, including alleged acts that might be deemed sexual assault today. She filed for unemployment benefits, but was denied after the university asserted that she quit for “personal reasons.” A group of women employed by the university rallied to her defense, founding a group called Working Women United. The group held meetings at which women shared their workplace experiences. The term “sexual harassment” appeared out of these meetings.

Workers in the restaurant industry, particularly servers, depend on tips for their income. Under both state and federal law, employers are not required to pay the full minimum wage amount to employees who customarily receive tips. Instead, they pay a “tip credit” that, when combined with a worker’s tip income, totals at least the minimum wage. This can put restaurant workers in a vulnerable position. A restaurant server may worry about lost income if they object to harassment by a customer. A report published by Mic in late 2017 examined reports of sexual harassment by tipped restaurant employees. It found that restaurant workers have one of the highest rates of reported sexual harassment.

The federal Fair Labor Standards Act (FLSA) defines a “tipped employee” as one who “customarily and regularly receives more than $30 a month in tips.” 29 U.S.C. § 203(t). Tipped employees’ compensation is a combination of wages paid by their employer and tips paid by customers. An employer of a tipped employee must pay a minimum wage, or tip credit, of $2.13 per hour, plus any additional amount needed to raise the employee’s total compensation to the minimum wage of $7.25 per hour. Id. at §§ 203(m), 206(a)(1)(C); 29 C.F.R. § 531.59. New York City mandates higher minimum wages than the FLSA. N.Y. Lab. L. § 652(1)(a). For tipped employees in New York City restaurants, the minimum wage as of December 31, 2017 is $8.00 per hour for employers with ten or fewer employees, and $8.65 per hour for those with eleven or more employees. The tip credit is $4.00 and $4.35, respectively.

Laws at the federal, state, and city level in New York City prohibit employment discrimination on the basis of sex. This includes sexual harassment in situations where unwelcome and pervasive sexual conduct creates a hostile work environment. A claim could arise from a single incident, if it is severe enough, but most hostile work environment claims are based on an ongoing pattern of behavior. The conduct that gives rise to a hostile work environment could come from one or more supervisors, coworkers, or customers. If, as is the case in the Mic report mentioned above, customers are responsible for the alleged hostile work environment, the employer must have known about the conduct and failed to act in order to be liable.
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As the nation pays greater attention to sexual harassment in the workplace, hotel maintenance employees are finally gaining a platform to talk about what they have endured. Several recent high-profile lawsuits have sought to address the alleged sexual harassment of housekeeping workers by hotel managers and other employees. Many housekeepers face another problem, however—sexual harassment by hotel guests. Employers may be held liable for acts perpetrated by customers, but New York City sexual harassment plaintiffs must prove that the employer knew or should have known about the harassment and failed to act. This can be particularly difficult in the context of hotel maintenance, in which employees may find themselves alone with a guest in the guest’s room. Measures like panic buttons may help address the issue, but the sheer scope of the problem suggests that much work is left to be done.Sexual harassment is considered a form of sex discrimination under statutes like the New York City Human Rights Law and Title VII of the Civil Rights Act of 1964. One of the main forms of sexual harassment covered by these laws occurs when unwelcome sexual conduct creates a hostile work environment that interferes with an employee’s ability to do their job. In order to assert a claim for a hostile work environment created by one or more customers, a plaintiff must be able to “show that the employer either knew (actual notice) or should have known (constructive notice) of the harassment and failed to take immediate and appropriate corrective action.” Watson v. Blue Circle, Inc., 324 F. 3d 1252, 1259 (11th Cir. 2003).

The hospitality industry presents additional challenges for plaintiffs. In a practical sense, identifying guests who sexually harass hotel employees can be difficult because of “plausible deniability”—it is usually the employee’s word against the guest’s. This makes investigations difficult and puts a hotel in a position of choosing between an employee and a paying customer. In a legal sense, hotels and other lodging-related businesses have a particularly high duty of care toward their customers. “A hotel…has a duty to use due care to protect its guests against foreseeable hazards, including criminal acts.” Shadday v. Omni Hotels Mgt. Corp., 477 F. 3d 511, 512 (7th Cir. 2007).

Part of the basis for a hotel’s duty of care to its guests is based on the general fact “that the hotel has much better access to information about the danger than its guests do.” Id. at 512-13. A hotel also has a duty to protect its employees against criminal acts and other hazards, but absent a robust method for reporting and recording complaints by hotel employees against guests, it can be difficult for hotels to anticipate or respond to problems with individual guests.

Numerous employment statutes protect workers from employment discrimination in New York City on the basis of various protected categories. These laws’ prohibitions on sex or gender discrimination include sexual harassment in certain forms, including the use of sexual activity as a condition of employment, and patterns of sexually-oriented behavior that create a hostile work environment. These laws also prohibit employers from retaliating against employees who assert their legal rights. A lawsuit filed late last year alleges that supervisors at a security company, which was contracted to provide services at JFK International Airport in Queens, engaged in unwelcome and offensive conduct, including allegedly forcing the plaintiff to watch live video feeds of other employees engaging in sexual activity. Powell v. Allied Universal Security Services et al, No. 1:17-cv-06133, complaint (E.D.N.Y., Oct. 20, 2017). Several more employees have reportedly joined the case as plaintiffs in 2018.

The New York City Human Rights Law (NYCHRL) prohibits employment discrimination on the basis of gender, which includes sexual harassment. N.Y.C. Admin. Code § 8-107(1)(a). At the state level, the New York State Human Rights Law (NYSHRL) contains similar provisions. N.Y. Exec. L. § 296(1)(a). Title VII of the Civil Rights Act of 1964, a federal statute, also provides similar protections, but it is not the only federal law that covers hostile work environment claims. The Civil Rights Act of 1991 specifically addresses racial discrimination in various areas, including employment, and prohibits “impairment” of “the full and equal benefit of all laws and proceedings…as is enjoyed by white citizens.” 42 U.S.C. § 1981.

The lead plaintiff in Powell worked for the defendant at JFK Airport for four years, according to her complaint. She alleges that she was given a choice between “hav[ing] sex with male supervisors and get[ting] ahead,” or “refus[ing] and be[ing] relentlessly harassed and retaliated against.” Powell, complaint at 1. She states that she “chose the latter,” id., and therefore faced discrimination based on race and gender, followed by retaliation for reporting the discrimination.
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Over the past year, countless people have come forward with accounts of sexual harassment in the workplace. Known as the #MeToo movement, it began in the entertainment industry, and has expanded to include many other industries and professions. Fashion models have described their experiences with harassment at photo shoots, fashion shows, and other events in New York City. Sexual harassment is covered by laws prohibiting sex discrimination in employment, but the fashion industry presents challenges under laws like the New York State Human Rights Law (NYSHRL). These laws generally apply to “employees.” Many who work in fashion are considered to be independent contractors. In October 2017, an Assemblywoman from Queens introduced A08572, the “Models’ Harassment Protection Act” (MHPA). This bill would amend the NYSHRL to include provisions specifically applying to the types of sexual harassment that models often experience, and to account for the employment relationship between model and designers, photographers, and others.

The U.S. Supreme Court established that the prohibition on sex discrimination in employment under federal law includes sexual harassment. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). New York courts have made the same determination with regard to the NYSHRL. See, e.g. Belle Ctr. v. Human Rights Div., 221 A.D.2d 44, 49-50 (N.Y. App. Div., 4th Dept. 1996).

Plaintiffs can allege two types of sexual harassment under these laws. Quid pro quo sexual harassment occurs when a “supervisor…expressly or tacitly link[s] tangible job benefits to the acceptance or rejection of sexual advances,” regardless of how the plaintiff responds to said advances. Id. at 50. Hostile work environment occurs when pervasive and unwelcome conduct of a sexual nature “alter[s] the conditions of the [plaintiff’s] employment.” Id. Neither theory of sexual harassment requires proof of economic loss, but a quid pro quo claim requires “proof of linkage between the offensive conduct and decisions affecting employment.” Id. at 50-51.
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Sexual harassment is an unlawful form of sex discrimination under employment statutes in New York City and around the country. It is often a result of an individual taking advantage of their power or authority in the workplace over a subordinate. It could take the form of demands for sexual activity of some sort as a condition of employment, or a pattern of unwanted sexual remarks or advances. In either case, the alleged harasser relies to a large extent on the alleged victim’s inability to speak out directly against the behavior. Statutes like the New York City Human Rights Law and Title VII of the Civil Rights Act of 1964 allow individuals who have experienced unlawful New York sexual harassment to file an administrative complaint, followed by a civil lawsuit. Some scenarios in which sexual harassment may occur, however, are not “workplaces” under the meaning of laws like Title VII. Sexual harassment can occur in academic settings, and Title IX of the Education Amendments of 1972 provides recourse in those situations. In late 2016, several former graduate students complained of sexual harassment by a professor. An internal investigation by the university resulted in the professor’s dismissal a year later. The story made headlines largely because the alleged harassment did not occur in a classroom or laboratory, but instead during research trips to Antarctica.

When sexual harassment occurs in an educational setting, employment anti-discrimination statutes might not apply. Title IX prohibits discrimination by certain educational institutions on the basis of sex. 20 U.S.C. § 1681(a). Federal funding is the main factor determining whether Title IX applies to a particular educational institution. A series of U.S. Supreme Court decisions have established that Title IX allows civil claims for sexual harassment by teachers, professors, or other employees against students, provided that the school administration knew about the alleged harassment and failed to take appropriate action. Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992); Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998).

The cases involving research trips to Antarctica mentioned above involved three former graduate students and the geology department chair at Boston University (BU). The complaints allege numerous acts of sexual harassment during trips to Antarctica between 1999 and 2001, when the department chair was an assistant professor. Antarctica is the fifth-largest continent in the world—larger than Europe or Australia—but because of its location at the South Pole, it is almost entirely covered with ice. It has no permanent population. The only residents temporarily inhabit scientific research stations. The continent is not under the jurisdiction of any particular nation, but any nation’s presence there is governed by international treaties. U.S. laws generally apply to Americans in Antarctica.

Recent media and public attention has helped shed light on sexual harassment in workplaces all over the country, including New York City. Employees have several means to fight back against such unlawful employment practices, but the attention to the issue since last fall has helped many employers identify and deal with individuals, policies, and practices that contribute to workplace sexual harassment. Laws like the New York City Human Rights Law (NYCHRL) allow employees to recover damages once New York City sexual harassment has occurred. The hope, of course, is that this attention will make workplace sexual harassment less common in general. Allegations of sexual harassment at a finance and technology startup company last year led to the CEO’s resignation, between the filing of two lawsuits against the company. Charles v. Social Finance, Inc., No. CGC-17-560682, complaint (Cal. Super. Ct., San Francisco Cty., Aug. 11, 2017); Zamora vs Social Finance, Inc., No. SCV-261312, complaint (Cal. Super. Ct., Sonoma Cty., Sep. 21, 2017).

In New York City, laws at the city, state, and federal levels prohibit sex discrimination in employment. Each of these statutes, while not expressly mentioning sexual harassment, has been construed to prohibit sexual harassment as part of its provisions on sex discrimination. One particular form of prohibited sexual harassment under the NYCHRL and other laws is known as “hostile work environment.” This involves a pattern of unwanted sexual behavior, ranging from remarks, comments, or jokes to overtures or actual physical contact, that is pervasive enough to interfere with a person’s ability to do their job. The behavior does not necessarily have to come from individuals in a superior workplace position to the complainant, provided that the employer knows about it but has failed to act.

The defendant in the lawsuits mentioned above is a Silicon Valley startup that provides online lending services. The company received positive coverage in the media for “stretching the definition of what a lender should do” by providing services beyond those directly related to a lender/borrower relationship. Beginning in early to mid-2017, however, stories began to emerge that showed a very different side of the company. Not at all unlike many New York City finance companies, current and former employees described an alleged “frat house culture” that included frequent sexual banter and actual sexual activity on company property.

Virtual reality (VR) technology has been a feature of science fiction for some time. The technology is quickly advancing, although it has not reached the level portrayed in books and movies. Devices are now available to consumers that allow them to play VR games, both alone and with other players online. VR technology may prove to be useful in educating people about preventing sexual harassment in the workplace, and also in the recovery process for survivors of sexual assault and sexual harassment. New York City is home to numerous technology companies exploring the benefits of VR technology. Unfortunately, VR has also presented further opportunities for some people to engage in New York sexual harassment. Participants in online VR games have reported numerous instances of conduct that would meet any standard definition of sexual harassment, and even assault, if it occurred in the real world. These alleged incidents might not directly involve employment statutes dealing with sexual harassment, but they demonstrate how deeply ingrained the attitudes that often lead to sexual harassment are in our society.

Employment statutes like the New York City Human Rights Law (NYCHRL) and Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sex. This includes sexual harassment in certain situations:  when a manager or supervisor makes sexual conduct of some sort a condition of employment, and when unwanted sexual remarks and other conduct are pervasive enough to create a hostile work environment. Employers have a legal responsibility to make reasonable efforts to investigate and remedy reported sexual harassment, and they could be liable for failing to do so. These statutes could apply to sexual harassment in “virtual” settings if an individual’s job requires them to participate in VR activities. For consumers using a company’s VR services, the service provider’s legal duty is not quite as clear, but they still have responsibility for their customers’ safety.

Current VR technology involves the use of a headset that allows a user to view the virtual setting in three dimensions. The headset responds to the user’s head movements, and additional controllers might reflect the real-world movement of the user’s arms, hands, and legs. The result can be a remarkably immersive environment, which has demonstrated benefits for various types of training and education. Some employers conduct sexual harassment trainings using VR technology, based on research suggesting that people retain more information from interactive VR programs than from live speakers or videos. VR applications might also help people who have experienced sexual assault and sexual harassment deal with trauma and related issues.

In every type of workplace in New York City, sexual harassment is an unlawful employment practice. Employers have a duty to protect employees from harassment not only by supervisors and co-workers but also by customers. The type of work performed has no bearing on this, which one might hope is something that would not need to be said. Members of cheerleading squads for professional sports teams around the country have spoken out recently about sexual harassment experienced as part of their jobs. The job of a professional sports cheerleader is to entertain, with the entertainment coming from a combination of athletic prowess and physical attractiveness. To use football as an example, certain aspects of the game still cater to certain stereotypical male preferences, even though women now make up nearly half of the NFL’s fan base. While professional cheerleaders must have extensive dance training and experience, policies and practices at both the team and league levels sometimes place them in a more decorative role—one that can leave them exposed to the risk of sexual harassment and assault by fans and others. A recent discrimination complaint further outlines the workplace challenges cheerleaders face.

Cheerleading as a profession falls into an unusual legal category, in which sex and—for lack of a better term—sex appeal may be viewed as key qualifications for a job. Employment statutes prohibit discrimination based on sex, but not necessarily based on attractiveness. Court decisions and other laws directly addressing this are relatively rare, and they can vary widely from one industry or workplace to another. Over 30 years ago, a federal court ruled that an airline could not use “sex appeal” as a “bona fide occupational qualification” for its flight attendants. Wilson v. Southwest Airlines Co., 517 F.Supp. 292, 293 (N.D. Tex. 1981). The court noted an exception, however, for jobs involving “vicarious sexual recreation.” Id. at 301. It cited two 1971 decisions by the New York Human Rights Appeals Board, allowing Playboy Clubs to discriminate based on sex and physical appearance.

The job of professional sports cheerleaders includes much more than performing during games. Cheerleaders are also expected to act as ambassadors for their team by attending team-sponsored events and other promotional events. According to a report in the New York Times, this often includes events at which alcohol consumption occurs, such as tailgate parties, sometimes leading to “offensive sexual comments and unwanted touches by fans.” Many women reported “go[ing] in pairs or small groups to feel safer.”

Sexual harassment pervades almost every type of workplace throughout the country. While New York sexual harassment statutes offer employees tools to fight back against harassment, hostile work environment, and retaliation, new stories of harassment appear nearly every day alongside success stories. It is worth examining how the law protects people from harassment in the workplace, and how the law falls short. Laws like the New York City Human Rights Law (NYCHRL) provide protection against these practices, but many industries and professions continue to maintain cultures that often seem to support the harassers over the harassed. A story published last year in the Washington Post describes a survey of space scientists, which indicated that both racial and sexual harassment are significant concerns, particularly for women of color working in that field.

The NYCHRL, Title VII of the Civil Rights Act of 1964, and many other statutes prohibit workplace discrimination on the basis of sex, race, and other factors. Sexual harassment is generally considered to be a form of sex discrimination under all of these statutes. Unlawful sexual harassment includes a range of acts, including unwelcome sexual remarks, jokes, or overtures that, in the aggregate, create a hostile work environment. Acts that, examined in isolation, might seem relatively minor could become part of a hostile work environment if they occur in vast numbers. A small number of acts could constitute a hostile work environment if they are particularly severe.

Many workers do not speak out about harassment for fear of losing their jobs or suffering other punitive actions. In addition to prohibiting sexual harassment, these laws also prohibit retaliation against employees who report concerns to a supervisor or manager, who take other actions to oppose the alleged harassment internally, or who make a report to a government agency like the New York City Human Rights Commission or the federal Equal Employment Opportunity Commission.

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