Articles Posted in Retaliation

restaurant waitressNew York City is famed throughout the world for its restaurants, which offer a truly global selection of cuisine. Even the most glamorous restaurants in the city, however, are often anything but glamorous for many of the people who work there. Sexual harassment in New York City restaurants might soon gain as much notoriety as the city’s restaurants have gained fame. Renewed attention to Hollywood’s culture of sexual harassment and abuse has brought the issues of other industries in other cities to light, including the New York City food scene. A lawsuit filed this summer against a famous Manhattan hotel offers multiple examples of New York City sexual harassment in the service industry, and the ensuing months have brought further claims against restaurants and their chefs.

Federal, state, and local anti-discrimination laws identify two categories of sexual harassment, both of which are frequently present in the restaurant business. The first category, known as quid pro quo sexual harassment, involves requests or demands for sexual contact in some form in exchange for a job, or for preferable shift assignments and other features of employment. It often also involves overt or implied threats to one’s job if the requests are denied. The second category, hostile work environment, consists of unwelcome remarks, jokes, overtures, and other actions of a sexual nature that are pervasive or severe enough to interfere with the ability to perform one’s job duties. The conduct can range from offensive jokes to outright sexual assault.

Numerous features of the restaurant business seem to lend themselves to sexual harassment by supervisors, managers, coworkers, and customers. While sexual harassment is not limited to harassment of female servers and hostesses by men, that is perhaps the archetypal example, and it probably constitutes a substantial amount of the sexual harassment that occurs in New York City restaurants:

hourglassSexual harassment is a pervasive problem in nearly every type of workplace throughout the country. The media have paid particular attention to sexual harassment in the film industry in recent weeks after numerous allegations of sexual assault and abuse by a prominent Hollywood producer surfaced. Some allegations are quite recent, while others go back decades. Many of those who waited to go public with their allegations may have feared retaliation by the producer or others. New York City sexual harassment and retaliation are actionable as forms of employment discrimination under city, state, and federal laws. Each of these laws imposes a time limit for filing a claim, known as a statute of limitations. Complainants alleging sexual harassment do not have to come forward immediately, but the amount of time the law allows is measured in months, rather than years.

A wide variety of acts could support a claim for sexual harassment. A claim may allege a single incident or a lengthy pattern of incidents. The scenario presented by many of the allegations currently coming out of Hollywood—in which a producer or director demands sex from an actress in exchange for a part in a film, often with a threat to damage her career if she refuses—is almost the archetypal example of sexual harassment. Unwelcome comments or jokes of a sexual nature might constitute sexual harassment if they are severe or pervasive enough to create a hostile work environment. Unlike the first example, which might involve a single incident, a hostile work environment claim could involve more incidents than a complainant could easily remember. The time limit for filing is usually based on the most recent incident of harassment.

The purpose behind a statute of limitations is to encourage complainants to assert legal claims as soon as possible so that witnesses’ memories are still fresh and other evidence is still available. Most statutes of limitations begin to run from the date an injury or unlawful act occurs. They may also begin to run on the date that a person could reasonably be expected to have discovered an injury, such as in the case of an injury that is not immediately apparent.

Director's chairEmployment anti-discrimination laws all over the country prohibit sexual harassment, treating it as a type of sex discrimination. New York City workers are protected by federal, state, and municipal laws addressing sexual harassment. For many aggrieved workers, the actual harassment is not the only problem they must face. A substantial number of people who have reported alleged sexual harassment in the workplace have faced retaliation by their employers, ranging from reduced hours to termination. Many people hesitate to come forward about harassment because they fear losing their jobs. The recent media attention to sexual harassment in the Hollywood movie business has illustrated this issue, with many people waiting years to come forward, partly out of fear for their careers. Anti-discrimination laws like Title VII of the Civil Rights Act of 1964 address this concern by making retaliation a separate “unlawful employment practice.” In addition to legal claims for sexual harassment, people can also assert claims and recover damages for retaliation.

The Equal Employment Opportunity Commission (EEOC) defines workplace sexual harassment in two general ways:  requests or demands for some form of sexual activity as a condition of employment or better employment conditions, or with a threat of adverse employment consequences; and pervasive conduct of a sexual nature that renders the work environment hostile. The alleged harasser’s conduct may range from “unwelcome” sexual comments, jokes, or overtures to nonconsensual touching or sexual assault. A complainant must be able to establish that the conduct was “unwelcome” and that the alleged harasser knew or should have known as much. The EEOC has stated that “a complaint or protest” against the alleged harasser can prove the “unwelcome” nature of the conduct, but some individuals might not complain or protest for fear of repercussions. This is where Title VII’s provisions on retaliation come into play.

A guidance document issued by the EEOC in August 2016 addresses retaliation claims under Title VII. Employers may not retaliate against employees who privately oppose actions they find harassing or otherwise unlawful, for complaining of such conduct to a company human resources officer, nor for complaining to the EEOC or a comparable city or state agency. In the context of sexual harassment, the EEOC offers an example of an employee who tells a supervisor “leave me alone” and “stop it” in response to the supervisor’s “repeated sexual comments.” The EEOC defines “retaliation” as any “materially adverse action” taken against the employee, which “might well deter a reasonable employee from complaining about discrimination.”

office sofaThe term “sexual harassment” is commonly associated, in the public’s imagination, with certain overt acts that fail almost any test of basic decency. These acts might include unwanted touching or groping, or an ongoing pattern of sexual remarks or overtures that are clearly unwanted. The legal definition of sexual harassment, however, applies to a much broader range of behaviors, some of which are finally receiving public scrutiny. A key requirement of a sexual harassment claim is that the alleged harasser’s behavior is “unwelcome.” If a complainant appears to consent to some form of sexual activity, does that negate the “unwelcome” element of a sexual harassment claim? As we have learned from recent allegations out of Hollywood, not necessarily. Consenting to sexual activity for the sole purpose of obtaining or keeping employment, or accessing greater employment benefits or perks, is not what the law means by “consent.” It still constitutes New York sexual harassment under federal and state law.

The Equal Employment Opportunity Commission (EEOC) identifies two main categories of sexual harassment:  quid pro quo sexual harassment and hostile work environment. A supervisor commits quid pro quo sexual harassment when they request or demand sexual activity in exchange for a job or various features of a job, or under a threat of firing. A single incident can constitute quid pro quo sexual harassment if it is severe enough. An individual who submits to demands made in this context is not necessarily acting entirely of their own free will, since the cost of refusing might be the loss of their livelihood.

The idea of exchanging sex for job opportunities is quite familiar in Hollywood. Specifically, the “casting couch” involves producers or directors giving roles to actors or actresses who have sex with them, often accompanied with threats against their career if they refuse. This idea has become ingrained in Hollywood, officially condemned while also frequently overlooked. The producer at the center of the current controversy has even attempted to use this idea as a defense against the allegations, stating that he “came of age” in an earlier time, “when all the rules about behavior and workplaces were different.” He specifically mentioned the 1960s and 1970s, a time before the U.S. Supreme Court had fully recognized sexual harassment as sex discrimination in violation of Title VII. The sort of behavior described in the many allegations against this producer has always been improper and abusive. The key difference is that now, the targets of the harassers have more of a voice and are finally able to speak out.

New YorkSexual harassment in the workplace is unlawful in New York City under multiple anti-discrimination statutes. Multiple court decisions have held that prohibitions on sex discrimination include sexual harassment. Aggrieved employees can assert their rights before regulatory agencies at the city, state, or federal levels, or they can take their claims to state or federal court. A lawsuit filed in a state-level court in Manhattan earlier this year illustrates many of the types of claims seen in New York City sexual harassment cases. Green v. Exusia, Inc., et al., No. 151989/2017, complaint (N.Y. Sup. Ct., N.Y. Cty., Mar. 1, 2017). The complaint asserts causes of action for discrimination and retaliation under city and state laws, and it seeks monetary damages, declaratory judgment, and injunctive relief.

The New York City Human Rights Law (NYCHRL) is one of the most comprehensive anti-discrimination statutes in the country, offering protection against discrimination and harassment on the basis of a wide range of categories, including gender. N.Y.C. Admin. Code § 8-107(1)(a). It defines “gender” to include not only a person’s “actual or perceived sex” but also factors like gender identity and gender expression. Id. at § 8-102(23). The New York State Human Rights Law (NYSHRL), while not as far-reaching as the NYCHRL, offers protection against employment discrimination on the basis of sex. N.Y. Exec. L. § 296(1)(a).

The plaintiff in Green began working for the defendant, described in the complaint as “a rapidly growing data and information management consulting firm,” in November 2015. Green, complaint at 1. The job involved “working directly with [the company’s] Chairman, President, and Chief Executive Officer,” who is also individually named as a defendant. Id. The plaintiff’s experience as an employee, she alleges, was “marred by [the individual defendant’s] sexual desires and offensive conduct.” Id.

The U.S. court system offers those subject to employment discrimination an avenue to bring claims before a judicial body. However, a recent news report describes a New York sexual harassment and retaliation case that originated with employees of the court system. A court clerk alleges that her supervisor in a Brooklyn criminal court made unwanted sexual advances and punished her when she did not comply with his requests. In response, the New York State Court Clerks Association filed a complaint on behalf of the clerk. The complaint alleged that she resisted her supervisor’s unwanted sexual propositions, and as a result, she was demoted from her position in retaliation.Brooklyn court

The Equal Employment Opportunity Commission (EEOC) is a federal agency that provides guidance as to what constitutes employer retaliation against an employee. It is illegal for an employer to punish an employee for engaging in a “protected activity.” This term is intentionally broadly defined, and it includes refusing to follow orders that would lead to harassment and resisting sexual advances from a supervisor. Title VII also prohibits a coworker, employer, or supervisor from sexually harassing another employee.

The court clerk worked under her supervisor for over a decade, and over time her supervisor’s sexual advances became progressively more overt and lewd. For instance, the supervisor asked the court clerk if she ever took naked pictures of herself, commented that she was “one of those hot Latinas,” asked that she sit on his lap at work, and requested that she send him bikini pictures from a recent vacation on a cruise ship. The clerk resisted these sexual advances, and as a result, she was demoted in retaliation because of her refusal to succumb to her supervisor’s requests, the complaint alleges. Her claim draws a link between her “protected activity,” the refusal to supply bikini pictures of herself, and her job demotion.

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Tesla auto botsSexual harassment in specific industries can become the subject of particular public attention when employees speak out about their experiences. This has certainly been true of the financial sector, with many accounts of firm cultures that condone or even encourage harassment of employees in New York City. Sexual harassment, however, is hardly limited to any one industry or region. The technology industry in California has been the most recent recipient of public scrutiny, after allegations of rampant sexual harassment in one major tech company gained wide attention. A lawsuit filed against another prominent Silicon Valley company has kept focus on the region. The lawsuit alleges “pervasive harassment” of female employees, as well as wage disparities and lack of opportunities for promotions. The defendant eventually fired the plaintiff, stating that an internal investigation found her claims to be baseless. Despite this, the lawsuit continues, and it has reportedly inspired others to speak up.

Laws like Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sex and other factors. The protections against sex discrimination go beyond prohibitions against blatantly discriminatory practices like refusing to hire someone because of their gender. Courts have found that sexual harassment constitutes unlawful sex discrimination when it involves a demand for some sort of sexual activity or favor in exchange for some employment benefit, or when the harassment is pervasive or severe enough to create a hostile work environment. An employer may be liable for harassment perpetrated by a supervisor or manager. If the alleged harasser is not in a supervisory or managerial position over the recipient, the employer may still be liable if it learns of the harassment and fails to take remedial action.

In 2013, the plaintiff in the lawsuit mentioned above began working for the defendant, which designs, manufactures, and sells electric cars. She eventually received a promotion to a position in the general assembly department as an engineer at the company’s factory in Fremont, California. She was reportedly one of the only women in the department, and she alleges that she received less pay than the male engineers she replaced. She further alleges that less qualified male engineers were promoted over her, that management ignored her reports about problems with quality testing of new vehicles, and that she faced retaliation for those reports.

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