Articles Posted in Sexual Harassment

Transit SignIn New York City, multiple employment statutes protect employees from sexual harassment and other practices in the workplace. An archetypal example of workplace sexual harassment might involve a supervisor who demands some sort of sexual activity of a subordinate as a condition of hiring or continued employment. Another classic example involves sexual jokes, remarks, or other conduct that renders the workplace intolerable for the complainant, commonly known as “hostile work environment.” The laws dealing with sexual harassment arose, in large part, from complaints by female employees about actions by male supervisors, but unlawful sexual harassment is not limited to acts perpetrated by men against women. A complaint filed earlier this year with the New York City Commission on Human Rights (CHR), for example, alleges that a female chief executive officer subjected female employees to inappropriate sexual remarks and behavior in the office.

Sex discrimination in employment is unlawful under New York City law, New York state law, and federal law. The New York City Human Rights Law (NYCHRL) prohibits “discriminat[ing] in compensation or in terms, conditions or privileges of employment” on the basis of gender and other factors. N.Y.C. Admin. Code § 8-107(1)(a)(3). The U.S. Supreme Court first recognized sexual harassment as a form of unlawful sex discrimination in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The court held that federal anti-discrimination law was not limited to “tangible, economic barriers erected by discrimination,” but instead it was “inten[ded] to strike at the entire spectrum of disparate treatment of men and women in employment.” Id. at 64 [internal citations omitted].

The scenario presented in Meritor involved a female employee’s claim of a hostile work environment created by the actions of a male supervisor. Courts have since expanded the legal concept of sexual harassment to include numerous other dynamics. Another landmark decision, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), found that a male employee could bring a claim for sexual harassment based on conduct by male co-workers. The plaintiff worked on an offshore oil platform in the Gulf of Mexico, where co-workers “forcibly subjected [him] to sex-related, humiliating actions,” largely based on perceptions of his sexual orientation. Id. at 77. Justice Scalia, writing for a unanimous court, noted that “male-on-male sexual harassment…was assuredly not the principal evil Congress was concerned with,” but it is a “reasonably comparable evil[]” covered by federal law. Id. at 79.

Golden Gate BridgeSexual harassment in the workplace violates federal anti-discrimination laws, as well as many state statutes and city ordinances. An individual seeking to assert a claim for sexual harassment, hostile work environment, or similar claims must decide which statute or statutes to cite. The choice of law can be a complicated issue, and it can depend on both legal and geographic factors. Fortunately for many or most workers alleging employment discrimination in New York City, the New York City Human Rights Law (NYCHRL) offers some of the broadest protections of any law in the country. State law in New York is less expansive but still more comprehensive than federal law. A lawsuit currently pending in a state court in California, Scott v. Upload, Inc., et al., No. CGC-17-558730, complaint (Cal. Super. Ct., San Francisco Cty., May 8, 2017), offers a view of how state laws dealing with sexual harassment can differ from one another. It also illustrates how allegations of sexual harassment can affect an entire industry. Much like New York City’s financial sector, the tech industry in Northern California seems to produce an ongoing series of sexual harassment lawsuits.

The main anti-discrimination statute covering the entire United States is Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). At the state level, the New York State Human Rights Law includes additional factors like marital status and sexual orientation. N.Y. Exec. L. § 296(1)(a). Multiple Supreme Court and New York court decisions have established that sexual harassment constitutes unlawful sex discrimination. The Scott lawsuit cites the California Fair Employment and Housing Act (FEHA) in support of its claims. The FEHA goes a step further than both Title VII and the NYSHRL by codifying harassment and a failure by an employer to prevent harassment as distinct unlawful acts. Cal. Gov’t Code § 12940(j).

The plaintiff in Scott worked for the defendant, a technology company based in San Francisco, from May 2016 to March 2017 as the “Director of Digital and Social Media.” Scott, complaint at 3. She identifies two individuals as co-founders and executives of the defendant, and she alleges that they “expressly referred to the company as a ‘boy’s club.’” Id. at 4. Male employees allegedly spoke openly in the office about their “sexual exploits,” id., and made overt sexual comments about female employees in their presence. Sexually charged dialogue also “permeated work emails,” according to the plaintiff. She further alleges that “male employees engaged in explicit sexual conduct in the office” in her and other female employees’ presence. Id. at 5. Shortly after complaining about this alleged conduct, the plaintiff was terminated.

Coworking SpaceSaying that the modern workplace is changing is something of a cliché, but new and innovative work environments are a daily reality for many people. New ideas inevitably bring new challenges, particularly in regard to the way employees interact with their employers and their colleagues. “Coworking” is a relatively recent development in many cities, including New York. Employment laws may not be equipped for some of the challenges these spaces can present. In a coworking space, people engaged in different businesses share a workspace. A few recent news reports and lawsuits have alleged sexual harassment in coworking spaces, illustrating some of the challenges this workplace model can present.

In order to assert a claim for New York City sexual harassment or other types of unlawful employment discrimination, a claimant must be able to establish an employment relationship. The law does not provide a specific definition of this relationship, although terms like “employer” and “employee” can have varying definitions, depending on the statute in question. An employer only meets the definition of that term under Title VII of the Civil Rights Act of 1964, for example, if it has “fifteen or more employees.” 42 U.S.C. § 2000e(b). The New York City Human Rights Law (NYCHRL) does not define “employment” or other related terms. None of these statutes offers an easy idea of how they apply to the types of interactions commonly found in coworking spaces.

At this point, it would be helpful to define “coworking.” The fundamental element of coworking is a shared office space that members can use on a daily basis. For small businesses, coworking offers inexpensive office space, often with a receptionist and other amenities. Some coworking businesses allow small businesses to rent dedicated offices, desks, or tables. Individual coworkers might include freelancers and people who work remotely from their employers, who want workspace with reliable wifi service, free coffee, and the company of other people who work in similar fields. Those are some of the benefits. The potential drawbacks include a lack of clear lines of communication and accountability if sexual harassment or other misconduct occurs.

A state appeals court revived a New York gender discrimination claim against the owners of a local wellness clinic. In addition to being co-owners, the defendants were husband and wife. One of the defendants, the husband, hired the plaintiff as a yoga instructor and massage therapist and acted as her direct supervisor. The plaintiff and her supervisor maintained a professional relationship over the course of her employment; however, her supervisor disclosed that his wife (and the co-owner of the clinic) might get jealous of the plaintiff because she was “too cute.”

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Months later, the plaintiff received threatening text messages from her supervisor’s wife. The messages stated that the plaintiff was not welcome at the clinic any longer and that she should stay away from her husband and her family. On the next morning, the plaintiff received an email from her supervisor, notifying her that her employment was terminated and that he would call the police if she returned to the office.

The plaintiff filed a lawsuit in New York state court, alleging gender discrimination under the New York State Human Rights Law and the New York City Human Rights Law. Under these laws, employers are prohibited from taking an adverse employment action against an employee when motivated by reasons related to the employee’s sex or gender, including, as the plaintiff argued, sexual attraction.

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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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The Plaza Hotel, over its 100-year history, has become a New York City icon. Its guests include political dignitaries and world-renowned entertainers; however, a recent lawsuit filed by current and former female employees portrays a very different side to the hotel’s culture.

Plaza HotelSix female staff workers of the hotel filed a New York City sexual harassment lawsuit against their employer. The complaint alleges that, under the New York City Human Rights Law, the women were subjected to unwanted touching and lewd remarks from their supervisors and co-workers. Furthermore, the lawsuit alleges that hotel management were made aware of the offensive behavior but ignored the plaintiffs’ concerns. Although the lawsuit against the Plaza Hotel is shocking, sadly, the existence of sexual harassment is not uncommon in the hotel industry. For instance, the owners of a Holiday Inn Express in South Carolina paid $90,000 to settle an Equal Employment Opportunity Commission (EEOC) claim, which alleged that the hotel subjected its female workers to sexual harassment. In addition, a recent report claims that 8 in 10 hotel workers have been harassed at work. Although the hotel management disputes the plaintiffs’ claims, the lawsuit is moving forward, and the plaintiffs plan to file an EEOC charge under federal law.

Federal law makes it illegal for an employer to treat someone differently because of that person’s sex, among other traits. The provisions related to sex discrimination not only prohibit explicit discrimination, such as firing an employee because of that person’s sex, but also prohibit more subtle forms of discrimination against an employee. In addition, unwelcome sexual advances, requests for sexual favors, and other comments or actions targeted at a person’s sex constitute “sexual harassment.” The person or people committing the harassment can be a co-worker, a direct supervisor, or a supervisor in another department. When harassment is brought to the attention of the employer, the employer may be responsible for addressing the issue. If not, the employer might not be free from liability, even if they are not involved in the harassment.

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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.

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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