Articles Posted in Retaliation

Sexual harassment takes many forms. While the classic example of workplace sexual harassment might involve a male supervisor making sexual demands of a female employee, New York City sexual harassment attorneys know that it can occur between individuals of any gender. The key elements of unlawful sexual harassment are that the conduct is unwelcome, and that it is based on gender in some way. A lawsuit recently filed in a Manhattan federal court presents a scenario that might only seem out of the ordinary to people who mainly know about sexual harassment from its depictions in popular culture. In this case, a former hotel employee, “a black man who identifies his sexual orientation as gay,” is alleging sexual harassment by his female former supervisor and other unlawful acts.

Employment laws in New York City, New York State, and at the federal level prohibit discrimination on the basis of sex or gender. Sexual harassment is considered a form of sex discrimination when the harassing conduct creates a “hostile work environment.” This occurs when unwelcome sexual conduct that is either pervasive or severe creates an atmosphere that a reasonable observer would consider “hostile,” and that renders a person incapable of performing their job duties to the best of their ability. The conduct can range from lewd comments or jokes in the workplace to direct sexual overtures or worse.

The plaintiff in the lawsuit mentioned above states in his complaint that he began working for the defendant hotel in April 2018. His job involved booking and managing reservations for the hotel and its onsite restaurant. He alleges that the sexual harassment by his supervisor began “nearly as soon as [he] began his employment.” He states that he never hid his sexual orientation from his employer or coworkers, but the supervisor allegedly made frequent remarks regarding his sexuality. He claims that this included “mak[ing] lewd comments about the physical attributes of male guests and celebrities and ask[ing] [his] opinion of their physical attributes.

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While the #MeToo movement has made progress over the past several years in exposing sexual harassment in workplaces throughout the country, much work remains to be done. New York City sexual harassment attorneys know well that certain industries remain, in many ways, a “boys’ club” where female employees are expected to endure, at best, bawdy jokes and other inappropriate conduct. A lawsuit filed in a Manhattan federal courthouse in May 2020 alleges this kind of environment in a financial firm. The plaintiff alleges “relentless, egregious discrimination” on the basis of sex, followed by termination in retaliation for speaking out about it.

Sexual harassment is a type of sex discrimination in certain situations under New York City law, New York State law, and federal law. This includes a “hostile work environment” in which unwelcome conduct of a sexual nature is so severe or pervasive that a reasonable person would find it to be intolerable. Hostile work environments often involve a culture of sexual and/or sexist jokes or comments. A single incident, if severe enough, can support a hostile work environment claim, but most claims allege ongoing patterns of behavior.

The plaintiff states in her complaint that she began working for the defendant, a hedge fund located in New York City, in the summer of 2016 as an investment associate. Almost immediately, she claims, she noticed “a sexually charged and misogynistic work environment.” She describes her desk as being “part of a large table shared by seven people…located in the middle of the trading floor…within clear earshot of every person who sat on the floor.” The company allegedly employed few women during her time there. They all, she claims, had the title of “associate” and reported to male supervisors.

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New York City employment discrimination laws protect workers from adverse actions based on factors like sex, race, religion, sexual orientation, or gender identity or expression. Under federal, state, and city law, sexual harassment is viewed as a type of discrimination on the basis of sex or gender. Laws like Title VII of the Civil Rights Act of 1964 allow individuals to file suit against employers who have discriminated against them, or who have failed to take reasonable action to prevent a co-worker from discriminating against or harassing them. In April, a former officer with the New York City Police Department filed a federal lawsuit alleging sexual harassment under Title VII and several other statutes. The lawsuit names the city and five NYPD officers as defendants.

“Hostile work environment” is one type of sexual harassment recognized as unlawful sex discrimination. In order to prevail on a claim, a plaintiff must show that one or more people in the workplace engaged in unwelcome conduct that was either severe or pervasive enough to interfere with their ability to perform their job duties. Typically, they must show that a reasonable person would consider the conduct to be abusive, intimidating, or hostile beyond mere annoyance. Most hostile work environment claims involve ongoing behavior, but a single incident can support a hostile work environment claim, if it is especially severe.

The plaintiff in the lawsuit mentioned above alleges that a lieutenant, who is named as a defendant, “handpicked her” in February 2017 to work as his “Operator.” This job primarily involved driving him on patrol. She states that she felt he gave her “too much attention,” but did not complain out of fear of retaliation. While in the police vehicle, she claims that the lieutenant routinely made sexually suggestive remarks to her and asked her intrusive personal questions. This also allegedly occurred in the presence of other officers, but no one intervened.

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Laws at the city, state, and federal levels in New York City prohibit discrimination by employers on the basis of sex, and they all include sexual harassment in their definitions of sex discrimination. This can involve harassment by a member of any sex against a member of the same or any other sex. That said, most New York City sexual harassment attorneys would probably tell you that the type of case they still most commonly encounter involves a male supervisor or manager harassing a female employee. A lawsuit that is currently pending in a New York City federal court presents this sort of scenario. The plaintiff is alleging causes of action under laws at all of the three levels we mentioned above. The defendants include the City of New York, the police department, and multiple public officials. As a result, the lawsuit also asserts a cause of action for civil rights violations.

Sexual harassment constitutes sex discrimination in two general circumstances:
1. Quid pro quo sexual harassment: Agreeing or submitting to sexual advances or demands is a condition of getting a job, keeping a job, or other terms or conditions of employment. For example, a movie producer refuses to cast someone unless they agree to sexual activity in some form, or a restaurant manager gives the best shift assignments to servers who meet the manager’s sexual demands.
2. Hostile work environment: Pervasive and unwelcome sexual behavior renders the workplace unreasonably hostile and impedes a person’s ability to do their job. For example, an employee is repeatedly subjected to unwanted sexual comments or touching, or management refuses to address a work environment laden with inappropriate and offensive jokes.

The plaintiff in the lawsuit described earlier states in her complaint that she began working for the NYPD as an officer in 2012. She alleges that in 2015, her direct supervisor began subjecting her to a hostile work environment in the form of “unwanted physical contact” and “highly inappropriate sexual comments.” She further alleges that, after she informed the supervisor that his conduct was not welcome, her superiors reassigned her to a position she did not request, and which she states was generally “considered undesirable.” This, she claims, was retaliation for her “unwillingness to engage in sexual and promiscuous activities with male officers.”

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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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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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A time-tested way to diminish a woman’s authority in the workplace is to allege that she only attained her position through sexual favors, also known as “sleeping her way to the top.” This trope has probably been around for as long as women have existed in spaces perceived to belong to men. Unfortunately, that still describes many workplaces in 2019. Earlier this year, a federal appellate court considered a case in which a woman alleged that co-workers started a false rumor about her in this vein. The court ruled that an employer could be liable in this scenario under Title VII of the Civil Rights Act of 1964. New York City sexual harassment attorneys should take note of the court’s discussion of workplace rumor.

Title VII identifies two categories of sexual harassment as unlawful sex discrimination. Quid pro quo sexual harassment occurs when submitting to sexual activity of some sort is a condition of obtaining or keeping a job, or of obtaining various employment benefits. A hostile work environment occurs when unwelcome sexual remarks or conduct renders the workplace objectively intolerable.

The “slept her way to the top” trope combines both types of unlawful sexual harassment. First, it flips the quid pro quo scenario. Instead of a male supervisor or manager demanding sexual favors in exchange for a promotion or some other employment benefits, it alleges that a female employee offers sexual favors. Second, the effect of “slept her way to the top” rumors often take the form of a hostile work environment. For some reason—i.e. sexism or misogyny—the trope generally only views the woman as being in the wrong. The male supervisor or manager never seems to be faulted for allegedly agreeing to provide employment benefits for sex.

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