Articles Posted in Sexual Harassment

Norwegian flight attendantBusinesses have a duty to protect their customers from dangerous conditions, and they may be liable for damages under a theory of negligence or premises liability. Employers have a duty to protect their employees from certain dangers. These duties sometimes overlap. They could complement one another, as when a business must protect both its customers and its employees from a shared risk. At other times, an employer may have a duty to protect its employees from sexual harassment and other acts by certain customers. This type of situation may arise in any business where employees interact with the general public, but airlines present a particular risk, considering the confined space of an airplane and the duration of many flights. Recent reports on the issue of both sexual harassment and sexual assault on airplanes demonstrate the complicated legal issues that can be involved.

For airline employees, such as flight attendants, an airplane is a workplace, subject to the same laws and regulations as an office, restaurant, store, or other place of business. The fact that an airplane is mobile, meaning that the exact location where an alleged unlawful act occurred might be difficult to determine, does not prevent aggrieved employees from asserting their legal rights. Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment and other discriminatory acts in the workplace, applies throughout the nation. It may also apply on airplanes owned and operated by American companies, even if they are traveling internationally. Under Title VII, an employer may be liable for sexual harassment of an employee by a supervisor or manager. It can also be liable for sexual harassment by a coworker or customer, if it knows or should know about the harassment and fails to take remedial action.

Media reports illustrate incidents of sexual harassment and assault on airplanes on a fairly regular basis. These stories are often presented as further examples of uncomfortable and difficult conditions on airplanes, but they have their own distinct importance, in a legal sense, for airline employees. In one example from late 2016, an airline ejected a passenger from a flight, before takeoff, for allegedly catcalling a flight attendant during the safety demonstration. For every story like this one, it is unfortunately likely that many more go unreported.
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franchiseEmployment anti-discrimination statutes, such as the New York City Human Rights Law or Title VII of the Civil Rights Act of 1964, allow workers to assert claims against their employers for certain unlawful actions. Determining an employee-employer relationship, however, is not always easy. In situations in which more than one business might play a role in a worker’s employment, courts have developed the concept of a “joint employer.” A recent series of sexual harassment complaints against a major restaurant chain could require a joint employer analysis.

Discrimination in employment on the basis of sex is prohibited under city, state, and federal laws. The definition of “sex discrimination” has expanded over the years, through both court decisions and legislation, to include practices like sexual harassment and pregnancy discrimination. In a typical sexual harassment claim, a plaintiff must demonstrate that an employer is either directly liable due to actions against the plaintiff by a manager or supervisor, or liable for failing to address harassment by a co-worker of the plaintiff, about which it knew or should have known. Before that analysis even begins, however, a plaintiff must establish that an employment relationship exists.

A worker may receive a paycheck from one company but work at a different company’s site because of a contract between the two companies. When one company handles payroll, but another company directs the employee’s daily work, which one is the “employer?” Another common example of this problem involves franchised businesses. An individual might appear to be employed by a company that operates a national chain of stores or restaurants, but their employer is actually a local company operating under a franchise agreement with a larger company. The local business, or franchisee, would be the employer on paper, but the larger company, or franchisor, might still exercise considerable control over the conditions of employment.

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jewelerSexual harassment continues to be a significant problem in workplaces all over the country. Laws at nearly every level protect employees against sexual harassment and related practices, and the need for these protections is evident every day. A class action first filed over a decade ago demonstrates just how widespread and pervasive the problem is and how complicated its legal remedies can be. The case began in 2006, when over a dozen current and former employees of a major jewelry retailer complained of sex discrimination, including sexual harassment. This led to an ongoing proceeding before the American Arbitration Association (AAA) and a federal lawsuit. Jock, et al. v. Sterling Jewelers, Inc., No. 11-160-00655-08, 1st am. complaint (AAA, Jun. 26, 2008); No. 2:08-cv-02875, am. complaint (S.D.N.Y., Dec. 30, 2009). The arbitrator granted class certification in 2015, and as of early 2017, the class had about 69,000 members. The case was back in the news recently, when lawyers for the plaintiffs obtained permission to release sworn statements by their clients to the media.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of several factors, including sex. The U.S. Supreme Court has held that sexual harassment constitutes sex discrimination in violation of Title VII. See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Sexual harassment may be the subject of a class action complaint if the plaintiffs and their claims meet the criteria, including numerosity of complainants and commonality of claims and defenses. See Jenson v. Eveleth Taconite Co., 824 F.Supp. 847 (D. Minn. 1993).

Federal, state, and local employment statutes authorize civil lawsuits against employers for discriminatory practices, including sexual harassment. Many employers require their employees to sign contracts with arbitration clauses, however, which potentially keep them from seeking relief in a court of law. Arbitration is a method of alternative dispute resolution that resembles a civil lawsuit. A neutral arbitrator, who often has experience as a judge, reviews the allegations and evidence from both sides and may conduct hearings. Whether the parties are bound by an arbitrator’s decisions, and the extent to which a court may intervene in or overrule the arbitration, depends in large part on the terms of the employment contract.

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restaurantSexual harassment in the workplace is a widespread problem throughout the country. Certain types of workplaces seem more prone to sexual harassment than others, but it can be a problem anywhere. A 2016 report by the Equal Employment Opportunity Commission (EEOC) addressed risk factors for workplace harassment and found that restaurants presented a particularly high risk. A lawsuit filed earlier this year contains allegations that demonstrate many of these risk factors. Baker v. Olive Garden, et al., No. 2:17-cv-00392, complaint (E.D.N.Y., Jan. 25, 2017). It also demonstrates another increasingly common feature of employment disputes—the use of alternative dispute resolution (ADR) procedures. The plaintiff voluntarily dismissed the case several weeks after filing it in order to pursue arbitration of the matter.

Most anti-discrimination laws view sexual harassment as a form of unlawful discrimination on the basis of sex. Quid pro quo sexual harassment involves requests or demands for sexual activity or contact in some form as a condition of employment—including getting a job, keeping a job, and various features of employment. The conduct does not need to be this blatant, however. A violation of law also occurs when sexual remarks or overtures—ranging from inappropriate comments or jokes to direct sexual overtures to outright assault—create a hostile work environment.

The EEOC report mentioned earlier identifies risk factors for workplace harassment. These include reliance on customer service, disparities in power among employees, a prevalence of younger employees, and the presence of alcohol. In a restaurant, servers and other employees depend on customers for tips. They may not be able to object to harassment by a customer, or by a supervisor with the power to assign work shifts. Supervisors have considerable power over servers’ schedules and assignments, and many restaurant employees are on the younger side. Many restaurants serve alcohol and might even encourage drinking on the job by some employees. Left unchecked, individual acts of harassment can create a hostile work environment.

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Sunset Blvd.Employment laws across the country prohibit discrimination on the basis of sex. The legal definition of sex discrimination has grown over the years to encompass a wide range of conduct and disparate treatment that affects workers because of their sex. This includes both sexual harassment and pregnancy discrimination. The entertainment industry comprises a major part of New York City’s culture and economy, but it also remains the setting for a significant amount of sex discrimination. This is true on both sides of the country. A lawsuit filed late last year against a major media company in California, Taylor v. OWN, alleges both sexual harassment and pregnancy discrimination. The case is additionally notable because both the plaintiff and the alleged perpetrator are women. This type of alleged harassment tends to receive less media attention.

All 50 states, the District of Columbia and other U.S. territories, and the federal government have laws prohibiting sex discrimination in the workplace. The New York State Human Rights Law (NYSHRL) expressly mentions sex and “familial status” as protected categories. N.Y. Exec. L. § 296(1)(a). The statute prohibits employers from requiring pregnant employees to take leave against their will in most circumstances, and it goes further than many anti-discrimination statutes by requiring employers to provide “reasonable accommodations” for “known…pregnancy-related conditions.” Id. at §§ 296(1)(g), (3)(a).

California’s Fair Employment and Housing Act (FEHA) covers the same legal ground as the NYSHRL. Its list of protected categories includes sex, and it defines “harassment because of sex” to include both sexual harassment and pregnancy discrimination in many situations. Cal. Gov’t Code §§ 12940(a), (j)(4)(C). It requires employers to offer up to four months of leave to “female employee[s] disabled by pregnancy, childbirth, or a related medical condition.” Id. at § 12945(a)(1).

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MTA New York City Bus Nova Bus LFSA (2010)The New York City Human Rights Law (NYCHRL) applies to most public and private employers in the city. In some circumstances, another statute might preclude a sexual harassment claim against a public employer, such as a government agency. A currently-pending sexual harassment lawsuit involves claims against a public transportation authority, which was established by state law, and its subsidiaries. Jenkins, et al v. N.Y.C. Tr. Auth., et al, No. 153761/2013, complaint (N.Y. Sup. Ct., N.Y. Cty., Apr. 25, 2013). The defendants moved to dismiss the complaint on the ground that state law precluded lawsuits under the NYCHRL. The court found that, while another public transportation authority in New York is exempted from suit, this exemption does not apply to all similar authorities.

The principle of sovereign immunity holds that government agencies are immune from suit when not expressly allowed by statute or agreement. The NYCHRL expressly permits lawsuits against public employers in the city. N.Y.C. Admin. Code § 8-401. The statute defines “employer” as any individual, business, or organization with “four [or more] persons in his or her employ,” id. at § 8-102(5), and it does not make a distinction between public and private employees. Sex discrimination, including sexual harassment, constitutes an “unlawful discriminatory practice” under the NYCHRL, id. at § 8-107(1)(a).

The Metropolitan Transportation Authority (MTA) is a public benefit corporation created by state law to administer a district that includes the five counties comprising New York City, the other two counties of Long Island, and Dutchess, Orange, Putnam, Rockland, and Westchester Counties. N.Y. Pub. Auth. L. §§ 1262, 1263. Its subsidiary, the New York City Transit Authority (NYCTA), oversees public transportation for the city. The NYCTA is further subdivided to manage subway, bus, and rail systems.
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Financial DistrictEmployment discrimination based on sex is unlawful in New York City under employment statutes at the city, state, and federal levels. It is considered to include sexual harassment and pregnancy discrimination in most circumstances. A lawsuit filed late last year in a Manhattan state court alleges a pattern of discrimination that includes both of these. Castellanos v. Berkman Capital, et al., No. 159768/2016, complaint (Nov. 18, 2016). The plaintiff describes ongoing acts of sexual harassment, which allegedly culminated in termination when she asked for additional maternity leave.

Courts in the U.S. have recognized two broad categories of sexual harassment. Quid pro quo sexual harassment involves direct requests or demands for sexual activity of some sort as a condition of getting a job, keeping a job, or receiving other benefits of employment. Since this is far from the only kind of sexual harassment people can experience, courts have also recognized claims of sexual harassment when it creates a hostile work environment. The U.S. Supreme Court first recognized sexual harassment as a violation of Title VII of the Civil Rights Act of 1964 in the mid-1980s. It held that the harassment must be so “severe or pervasive” that it “alter[s] the conditions of [the victim’s] employment and create[s] an abusive working environment.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).

Pregnancy discrimination involves disparate treatment based on multiple factors surrounding pregnancy. The Pregnancy Discrimination Act of 1978 amended the definition of “sex discrimination” to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). This can include refusing to hire someone or terminating them because they are pregnant, or unreasonably reducing someone’s job duties or hours because of pregnancy or recent childbirth. The extent to which these laws require employers to make reasonable accommodations for pregnant or nursing employees, however, remains a matter of dispute in courts and legislatures.

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bullyingSexual harassment violates employment non-discrimination laws throughout the country. While New York City has one of the most expansive non-discrimination statutes in the country, offering numerous protections not available in other places, the laws regarding sexual harassment have become fairly uniform nationwide. Interesting developments in sexual harassment law can occur almost anywhere in the U.S. A recent sexual harassment trial in a Texas state court resulted in a jury verdict of over $1 million. Aside from the large award of damages, the case is notable for several other reasons. More than one-third of the verdict was assessed directly against the plaintiff’s supervisor in an individual capacity. Additionally, much of the coverage of the case described it as a fight over “workplace bullying.” While bullying has received a great deal of attention in the context of schools, bullying in the workplace has no specific legal remedy apart from existing anti-discrimination law.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of sex and other factors. Court decisions have established that sexual harassment is a form of sex discrimination under certain circumstances, such as when a supervisor or manager makes unwanted sexual advances toward an employee, or attempts to condition some benefit of employment on participation in sexual activity. It can also include remarks and actions of a sexual nature, as well as any pattern of sex-based harassment that creates a hostile work environment.

Workplace bullying does not have a precise legal definition, but it is broader in scope than sexual harassment in common usage. At least three states—California, Tennessee, and Utah—have laws that directly address workplace bullying in some form, although none of them allow private causes of action. California’s law, for example, requires employers with 50 or more employees to provide supervisory employees with training regarding issues like sexual harassment. Cal. Gov. Code § 12950.1.

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CUNYSexual harassment remains a pervasive problem in workplaces in New York City and throughout the country. Employment statutes prohibit sexual harassment as a form of sex discrimination, but this only applies when a complainant’s relationship to their alleged harasser is based on employment. Other laws apply in non-employment situations in which a power imbalance makes it difficult to push back against sexual harassment. Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., addresses discrimination on the basis of sex, including sexual harassment, in educational institutions. Late last year, the U.S. Department of Education (DOE) announced that it had reached a resolution in a sexual harassment policy dispute with an institution belonging to the City University of New York (CUNY) system. In re CUNY, Hunter Coll., No. 02-13-2052, resolution agmt. (DOE, Oct. 31, 2016).

Title IX prohibits sex discrimination by “educational institutions,” which it defines to include both public and private schools, from preschools through colleges and universities. 20 U.S.C. § 1681(c). The statute only applies to educational institutions that receive federal assistance, although this covers a substantial number of schools around the country. Much like Title VII of the Civil Rights Act of 1964, Title IX does not expressly mention sexual harassment as a type of sex discrimination. The Supreme Court has held that the statute authorizes lawsuits for sexual harassment and the recovery of monetary damages. See, e.g., Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).

Employers who are subject to Title VII are required to investigate claims of sexual harassment and to make reasonable efforts to remedy situations in which it has occurred. Failing to do so exposes them to liability to the aggrieved employee. Title IX is more specific, setting guidelines for educational institutions to establish “grievance procedures” and to designate a “responsible employee” to address complaints. 34 C.F.R. § 106.8. They must also follow specific procedures to notify current students, applicants for admission, parents of minor students, employees, and others of these policies and procedures. Id. at § 106.9.

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Central ParkSexual harassment in the workplace violates city, state, and federal employment laws in New York City. Under all of these laws, sexual harassment is viewed as a type of sex discrimination. An underlying assumption in many, but certainly not all, cases is that the perpetrator is attracted to the complainant. Employment laws in New York City protect a worker in this sort of scenario, but what about when an adverse employment action is based on a lack of attraction, or other purported concerns about an employee’s appearance? To put that in blunter terms, can an employer fire an employee for being “ugly”?

No employment statute in New York expressly mentions appearance, but other categories might apply in some situations. The New York City Human Rights Law (NYCHRL) prohibits employment discrimination on the basis of sex, gender identity or gender expression, age, disability, and other factors. The New York State Human Rights Law (NYSHRL) provides many of the same protections. Title VII of the federal Civil Rights Act of 1964 lists fewer protected categories, but the U.S. Supreme Court has established fairly broad protections under the umbrella of sex discrimination. The Americans with Disabilities Act (ADA) of 1990 and the Age Discrimination in Employment Act (ADEA) of 1967 also address employment discrimination.

Addressing this issue from a legal standpoint is difficult, since it is largely subjective. Beauty, as they say, is in the eye of the beholder, and some employers have successfully argued that appearance standards are a bona fide occupational qualification exempting them from discrimination laws. This has occurred in cases of men applying at restaurants that only hire female servers and women fired for gaining too much weight. All of these cases arguably involve standards of attractiveness or lack thereof. Several courts have also held that firing a female employee for being too attractive—which borders on an argument that termination was necessary to avoid sexual harassment—is not unlawful sex discrimination. Still, termination for being “ugly” might violate existing laws in certain situations.

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