Articles Posted in Sexual Harassment

Train wreckIn early October 2017, a prominent Hollywood production company fired one of its founders after numerous accounts of alleged sexual harassment and other misconduct became public. By mid-November, at least 50 women had come forward with allegations that depict a pattern of behavior going back decades. The allegations name a specific individual as the perpetrator, but legal liability for unlawful conduct like sexual harassment is not necessarily limited to the individual. The state of New York has reportedly opened an investigation into the producer’s company. At least two lawsuits allege that the company was aware of the producer’s behavior and was therefore negligent in failing to intervene.

New York sexual harassment is considered unlawful sex discrimination under Title VII of the Civil Rights Act of 1964, state law, and New York City law. Employers are vicariously liable for sexual harassment perpetrated by supervisors or managers against an employee in a subordinate position. An employee alleging sexual harassment by their boss can therefore seek to hold the employer liable under anti-discrimination law. To assert a claim under an employment statute like Title VII, a complainant must establish an employment relationship, either as an employee or as a job applicant. Certain common law claims, such as negligent hiring or negligent supervision, may be available when employment statutes might not apply.

The New York Attorney General (NYAG) announced in late October that it had opened an investigation into the company co-founded by the former film producer. The NYAG’s office has authority to investigate possible violations of the New York State Human Rights Law (NYSHRL), which prohibits multiple forms of workplace discrimination, including sex discrimination and sexual harassment. The statute also prohibits “aiding and abetting” unlawful employment practices. N.Y. Exec. L. § 296(6).

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:

Voice RecorderIn New York City, sexual harassment is considered a form of unlawful sex discrimination. In order to assert a claim for sexual harassment in court, a complainant must provide evidence of the allegedly harassing behavior. State and federal rules of evidence, along with state laws dealing with recordings of conversations and phone calls, outline methods for preserving and presenting evidence of sexual harassment.

Forms of Sexual Harassment

The law defines sexual harassment as either (1) requests or demands for some sort of sexual activity as a condition for obtaining or keeping employment, or favorable workplace treatment; or (2) unwelcome sexual conduct that creates a hostile work environment. Sexual harassment often takes the form of verbal or written communications, as well as physical conduct like unwanted touching, groping, or more. A complainant can offer evidence in the form of eyewitness testimony, written communications, and recordings of conversations or exchanges, subject to evidentiary rules and state law.

Hearsay Rule

Rule 801 of the Federal Rules of Evidence is perhaps best summarized as a restriction on the use of out-of-court statements as evidence in court. It has many exceptions and a very important exclusion:  statements by an “opposing party,” such as a defendant, are not considered hearsay and are therefore admissible as evidence. Fed. R. Ev. 801(d)(2).
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It has been hard to miss the recent headlines involving a major director and producer being accused of sexual abuse and harassment by several women. Indeed, what initially seemed like a single incident quickly turned into a series of allegations, each corroborated by a number of other victims who gathered the courage to come forward and discuss what they were put through.

Dark FaceWhen it comes to discussing sexual harassment or abuse, it is not uncommon for additional victims to come forward once the first claim is made against an alleged harasser. To be sure, sexual harassment and sexual abuse are both extreme violations of a person’s dignity, and openly discussing one’s victimhood is something that someone must be ready to handle.

In the past, society has inexcusably allowed a stigma to attach to victims of sexual abuse or harassment. This perceived stigma attaches to all types of New York sexual harassment and abuse, including allegations involving male victims and male perpetrators.

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Lately, the news media has been dominated by stories of sexual misconduct. Most often, the victims in these situations are women who are victimized by men who are in a position of power over the victim. However, the most recent swath of allegations made by women against their abusers has prompted some men who have been victimized to come forward with their claims.

Dark BedIt should go without saying, but New York sexual harassment laws protect both genders equally. That is to say that legally speaking, both men and women are capable of being victims of sexual harassment, and both men and women are capable of being perpetrators of harassment or abuse. Of course, sexual harassment can occur between members of the same gender as well.

Actor Discloses Sexual Misconduct 30 Years Later

Earlier this month, one actor came forward with a story of abuse that he endured when he was just 14 years old. According to a news report, the young actor was starring in a Broadway musical at the time, and it was normal for the teen to mingle with older actors after the show. One such actor, a then-26-year-old, took an interest in the young actor and invited him over for a party. The young actor arrived and quickly noticed he was the youngest one there. He settled in and watched television until midnight, when he realized everyone else had left. That is when the host attempted to seduce him. He was able to leave the apartment, but he has carried the experience with him since.

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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.”

handcuffsSexual harassment in the workplace may consist of a wide variety of actions, ranging from inappropriate sexual comments or jokes to unwanted touching of a sexual nature. Some of these acts may also constitute criminal offenses under New York sexual harassment law, which identifies multiple offenses involving unwanted physical contact. The news media have focused a great deal of recent attention on allegations of sexual harassment and sexual assault against a well-known Hollywood producer. These allegations demonstrate the range of conduct that counts as sexual harassment under the law, and how some acts violate not only employment anti-discrimination law but criminal law as well.

The allegations against the Hollywood producer include numerous acts that might constitute an assault-related offense or worse. According to reporting by the New York Times and New Yorker magazine, numerous actresses have come forward in recent weeks with accounts of harassment and abuse. Several women have accused him of forcing them to engage in sexual activity, or threatening their careers in Hollywood if they did not engage in sexual activity. Employment laws address these issues in several ways, but the role of criminal statutes in these types of situations is also critically important.

Assault and Related Offenses

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.

sexual harassmentSexual harassment in the workplace has been a major topic of public discussion in the past few weeks, due in large part to the numerous allegations against Hollywood producer Harvey Weinstein. These allegations have placed the movie business under a spotlight, exposing behaviors that have long been considered “open secrets” among many people, and causing more than a few people in positions of power—mostly, but not exclusively, men—to consider their own behavior. Despite this newfound attention to the issue, sexual harassment in movies and television has been a well-known phenomenon for some time. It even has a nickname:  “the casting couch.” Sexual harassment is also a pervasive problem beyond the movies. In New York City, sexual harassment is essentially considered part of the culture of many businesses, from Wall Street to neighborhood restaurants. A survey of more than 2,000 women by the magazine Cosmopolitan found that one-third of the respondents had experienced sexual harassment at work. Hopefully, the attention that is currently focused on Hollywood will also consider the many other places where sexual harassment can occur.

Anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964 and laws in New York and New York City, view sexual harassment as a form of unlawful sex discrimination. It may consist of unwanted and inappropriate comments, jokes, or overtures of a sexual nature, as well as non-consensual touching and overt sexual assault. The federal Equal Employment Opportunity Commission (EEOC) states that actions such as these constitute sexual harassment in a legal sense in several possible situations, including when obtaining a job is conditioned on agreeing to some form of sexual activity. Sexual harassment also occurs when harassing conduct is severe or pervasive enough that it creates a hostile work environment. These situations can occur in nearly every type of workplace.

The movie business might offer the archetypal example of the EEOC’s first definition of sexual harassment. The term “casting couch” dates back to at least the 1930s, in the early days of the film industry. It refers to the notion that actresses—and sometimes actors—must submit to sexual activity with a producer or director in order to obtain roles in films and build their careers. Over the decades, the term has come to represent the industry’s tendency to tolerate this sort of behavior, even if it nominally claims to oppose it.

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