Articles Posted in Retaliation

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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The New York Legislature enacted multiple measures last year addressing workplace sexual harassment. The governor signed them all into law as part of the budget bill in April 2018. One section requires employers to adopt a sexual harassment prevention policy and provide training to their employees. The bill gave them until October 9, 2018 to adopt a policy, which could be the model policy developed by the state, or a policy that meets the new law’s standards. The required training must be provided annually, which means that October 9, 2019 was the statewide deadline by which all employers must have conducted their first training. According to various news reports, not everyone met the deadline. This comes as little surprise to New York City sexual harassment lawyers, of course, but it is worth noting once again how antidiscrimination laws require constant attention and vigilance.

The New York State Human Rights Law (NYSHRL) prohibits employment discrimination on the basis of sex. N.Y. Exec. L. § 296(1)(a). Decades of caselaw have held that sexual harassment is a type of sex discrimination under the NYSHRL and similar statutes. A recent amendment to the NYSHRL expanded the law’s coverage in sexual harassment cases. While the law usually only applies to employers with at least four employees, it applies to all employers in the state for sexual harassment claims. Id. at § 292(5).

Part KK of the 2019 budget bill contains multiple new measures related to sexual harassment. Subpart E added a new section to the Labor Law entitled “Prevention of Sexual Harassment.” N.Y. Lab. L. § 201-G. This section directed the state to create a model sexual harassment prevention policy, and required employers to adopt this policy or a similar one by October 9, 2018.

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Title VII of the Civil Rights Act of 1964 requires employees and job applicants to follow a rather lengthy administrative process before filing a lawsuit. New York City employment discrimination attorneys have multiple options when deciding how to approach claims like sexual harassment. Each statute defines procedures that lawyers and their clients must follow. A decision handed down by the U.S. Supreme Court in June 2019, Fort Bend County v. Davis, addresses a defense known as “administrative exhaustion.” Employers can raise this defense when a plaintiff did not follow the administrative process required by federal law. It can result in dismissal of a case. The Davis decision, however, holds that an employer waives the defense if they do not raise it soon enough.

Before an employee or former employee may file a lawsuit under Title VII in federal court, they must file a charge with the Equal Employment Opportunity Commission (EEOC). The deadline to file a charge is 180 days after the alleged unlawful act. 42 U.S.C. § 2000e-5(e)(1). The EEOC investigates the claim, and may attempt to reach a “conciliation agreement” with the employer. Id. at § 2000e-5(f)(1). It can decide to file suit against the employer on behalf of the complainant and others with similar claims.

A complainant only gains the right to file a lawsuit if, after 180 days, the EEOC has not initiated a lawsuit. The complainant can request a notice, known as a “right to sue” letter, that gives them ninety days to file suit. 29 C.F.R. § 1601.28. If an individual files a Title VII lawsuit before they have received a right-to-sue letter, the defendant can move to dismiss the lawsuit on the ground that the plaintiff did not exhaust all of their administrative remedies. Hence, it is known as the administrative exhaustion defense.
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Phillips & Associates has established itself as one of New York City’s top employment discrimination law firms, with an exclusive focus on employee representation. Our attorneys have obtained more than $110 million in verdicts and settlements. Many of them have received recognition from their peers as leaders in the field of employment law. The legal publication TopVerdict recently recognized three of our attorneys for a jury verdict of $2.31 million in an employment discrimination lawsuit. Marjorie Mesidor, Brittany A. Stevens, and Nicole A. Welch represented a former employee of the Port Authority of New York and New Jersey (PANYNJ) in a case that alleged hostile work environment based on race and national origin. TopVerdict included the case in its “Top 100 Verdicts in New York” list for 2018.

Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees and job applicants on the basis of race and national origin, among other factors. See 42 U.S.C. § 2000e-2(a). Multiple court rulings have established that an employer commits an unlawful employment practice when they create a hostile work environment based on a protected category. While a hostile work environment is probably most familiar in the context of sexual harassment, it can also occur when an unwelcome and pervasive pattern of harassment is directed at a person’s race, color, religion, or national origin.

The Civil Rights Act of 1991 offers further protection against discrimination on the basis of race. It guarantees the right of all persons in the U.S., regardless of race, “to the full and equal benefit of all laws and proceedings for the security of persons and property.” Id. at § 1981. Unlike Title VII, this statute allows plaintiffs to recover punitive damages if they can establish that a defendant acted “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Id. at § 1981a(b)(1).
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The plaintiffs in a New York City sexual harassment lawsuit, which gained prominence in large part because of the #MeToo movement, recently filed affidavits containing additional allegations of harassment by the defendant against themselves and others. The affidavits are a response to a motion to dismiss filed by the defendant, a television host who lost his show after multiple women accused him of sexual harassment in late 2017. The lawsuit, filed in May 2018 in state court in Manhattan, alleges violations of the New York City Human Rights Law (NYCHRL). It names the host and the television network as defendants. The plaintiffs settled with the network in late 2018. The defendant host moved to dismiss the lawsuit in September 2018, claiming that the plaintiffs failed to state “valid causes of action” for their claims of sex discrimination, retaliation, and aiding and abetting.

The NYCHRL prohibits discrimination on the basis of numerous factors, including gender. Court decisions have recognized sexual harassment as gender discrimination in violation of this and similar statutes. Unlawful sexual harassment includes scenarios in which an employer creates or allows a “hostile work environment” consisting of unwelcome and pervasive sexual conduct, ranging from jokes or remarks to overtures or contact. It also includes “quid pro quo” situations in which acceding to demands for some form of sexual activity is a condition of employment. Retaliation for opposing or reporting suspected violations is itself an unlawful employment practice under the NYCHRL.

According to their complaint, the three plaintiffs were “all in their low 20s” when they worked for the defendant host, who was “in his mid-70s.” They began working for the network during a span of time from late 2015 to early 2017, and they allegedly experienced sexual harassment by the host during 2017. They allege that the host had a history of sexual harassment complaints going back at least as far as the 1980s, and that the network knew about this but “failed to take any remedial action for decades.”

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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An individual may be able to bring a claim for wrongful termination against their now-former employer. New York law generally allows employers to fire employees for any reason that is not discriminatory or retaliatory. Proving wrongful termination usually requires evidence that the employer breached a contractual obligation, or that the termination violated an employment statute. When New York employment attorneys bring a claim for wrongful termination, it is often in combination with claims for discrimination or other violations of city, state, or federal law.

At-Will Employment

Employer-employee relationships in New York are considered to be “at-will employment,” unless an employment contract states otherwise. “At-will employment” allows the employer to terminate the employment arrangement at any time and for any reason, or for no reason at all, provided that the termination is not otherwise unlawful. It also allows the employee to quit at any time.

Lawful reasons for firing an at-will employee include:
– Downsizing;
– Performance issues;
– Misconduct; or
– Conflict of personalities.

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Some defendants in New York City have responded to sexual harassment lawsuits not only by denying the plaintiff’s allegations, but also by counterclaiming for defamation. This is a common-law claim alleging that a false statement has caused a person financial harm. New York City sexual harassment attorneys are familiar with many ways people have tried to prevent victims of sexual harassment from telling their stories. In some situations, the purpose of a defamation lawsuit is to prevent a person from speaking out by confronting them with significant litigation costs. This is known as a “strategic lawsuit against public participation” (SLAPP). Many states have enacted “anti-SLAPP statutes” allow motions for early dismissal of frivolous suits. Some anti-SLAPP laws provide privilege against defamation claims for statements made in connection with legal claims. New York has an anti-SLAPP statute, but it is very limited in scope.

Sexual harassment is considered a type of unlawful sex or gender discrimination under New York City’s antidiscrimination laws, such as the New York City Law Against Discrimination and Title VII of the Civil Rights Act of 1964. In order to prevail on a claim, a plaintiff must publicly allege all of the facts that they contend constitute sexual harassment. Unless a court orders otherwise, these details become part of the public record.

A claim for defamation requires proof of four elements under New York law: (1) a false statement made to a third party; (2) a lack of authorization or privilege for the statement; (3) negligence, or worse, as to the statement’s falsity; and (4) actual damage to the plaintiff. See Technovate LLC v Fanelli, 2015 NY Slip Op 51349(U). A false statement that alleges criminal activity, or that is intended to injure a person’s occupation, is considered defamation per se under New York law. Id. If the person claiming defamation is a public figure, they must prove that the defendant acted with actual malice.
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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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A jury in a Manhattan federal court returned a verdict this summer in favor of a professor who formerly taught at a university in New York City, and awarded her $1.25 million in damages. The plaintiff alleged sex discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL). Ravina v. Columbia University, No. 1:16-cv-02137, 1st am. complaint (S.D.N.Y., Jul. 8, 2016). The verdict demonstrates how different claims under Title VII may operate independently of one another. The jury actually found in favor of the defendant on the claims involving sex discrimination and sexual harassment. It rendered a verdict in the plaintiff’s favor, however, on her retaliation claims. New York City sexual harassment attorneys often present harassment and retaliation claims side by side, but the two claims involve two different statutory provisions. To borrow a phrase from the political realm, if sexual harassment is the crime, retaliation is often the cover-up.

Discrimination in employment on the basis of sex is an “unlawful employment practice” under Title VII and the NYCHRL. 42 U.S.C. § 2000e-2(a)(1), N.Y.C. Admin. Code § 8-107(1)(a). Multiple court decisions have established that sexual harassment is a form of sex discrimination in two broad categories: when sexual activity in some form is made a condition of employment, and when pervasive and unwelcome sexual remarks or behavior create a hostile work environment. Both laws also state that an employer commits an unlawful employment practice when they discriminate against an employee because they have “opposed any [unlawful employment] practice,” made a complaint alleging an unlawful employment practice, or cooperated in an investigation of an alleged unlawful employment practice. 42 U.S.C. § 2000e-3(a), N.Y.C. Admin. Code § 8-107(7).

A plaintiff, generally speaking, has the burden of proof in a civil lawsuit. They must establish the defendant’s liability by a preponderance of the evidence. A plaintiff must demonstrate to the finder of fact—a judge or jury—that at least fifty-one percent of the evidence supports their allegations against the defendant. If the finder of fact concludes that the plaintiff has not met this burden of proof, they must render a verdict in the defendant’s favor. This does not necessarily mean that the plaintiff’s claims are false or have been disproven. It only means that the plaintiff did not produce sufficient evidence to convince the judge or jury.
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