Articles Posted in Sexual Harassment

As the nation pays greater attention to sexual harassment in the workplace, hotel maintenance employees are finally gaining a platform to talk about what they have endured. Several recent high-profile lawsuits have sought to address the alleged sexual harassment of housekeeping workers by hotel managers and other employees. Many housekeepers face another problem, however—sexual harassment by hotel guests. Employers may be held liable for acts perpetrated by customers, but New York City sexual harassment plaintiffs must prove that the employer knew or should have known about the harassment and failed to act. This can be particularly difficult in the context of hotel maintenance, in which employees may find themselves alone with a guest in the guest’s room. Measures like panic buttons may help address the issue, but the sheer scope of the problem suggests that much work is left to be done.sexual harassment

Sexual harassment is considered a form of sex discrimination under statutes like the New York City Human Rights Law and Title VII of the Civil Rights Act of 1964. One of the main forms of sexual harassment covered by these laws occurs when unwelcome sexual conduct creates a hostile work environment that interferes with an employee’s ability to do their job. In order to assert a claim for a hostile work environment created by one or more customers, a plaintiff must be able to “show that the employer either knew (actual notice) or should have known (constructive notice) of the harassment and failed to take immediate and appropriate corrective action.” Watson v. Blue Circle, Inc., 324 F. 3d 1252, 1259 (11th Cir. 2003).

The hospitality industry presents additional challenges for plaintiffs. In a practical sense, identifying guests who sexually harass hotel employees can be difficult because of “plausible deniability”—it is usually the employee’s word against the guest’s. This makes investigations difficult and puts a hotel in a position of choosing between an employee and a paying customer. In a legal sense, hotels and other lodging-related businesses have a particularly high duty of care toward their customers. “A hotel…has a duty to use due care to protect its guests against foreseeable hazards, including criminal acts.” Shadday v. Omni Hotels Mgt. Corp., 477 F. 3d 511, 512 (7th Cir. 2007).

The past year has seen a significant increase in public and media attention to the issue of sexual harassment in the workplace. Allegations against major figures in politics, media, and other industries have led to what is known as the #MeToo movement, in which people who have remained silent about their experiences with alleged sexual harassment are finally speaking up. An increase in sexual harassment complaints, however, could lead to at least one potential area of concern—the workload and backlogs of the government agencies tasked with investigating employment discrimination complaints. New York City workers can file complaints with federal, state, or city authorities, but complainants in many parts of the country do not have as many options. The federal Equal Employment Opportunity Commission (EEOC) is responsible for investigating alleged discrimination in violation of Title VII of the Civil Rights Act of 1964, among other federal statutes. The agency has had a substantial backlog of cases for some time, but it remains to be seen whether the past year has added to their backlog of sexual harassment complaints.sexual harassment

Workers who have experienced New York sexual harassment may be able to bring claims under three statutes:  Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. Each of these laws considers sexual harassment to be a form of unlawful discrimination on the basis of sex. Agencies at the city and state levels handle complaints under city and state laws, respectively. The EEOC deals with complaints that cite Title VII or another federal anti-discrimination statute.

In order to file a lawsuit under Title VII, a worker must first file a complaint with the EEOC, known as a “charge.” The EEOC will investigate the charge to determine if it has merit. It will pursue a small number of cases on behalf of the complainants. In most cases, however, it will either rule that the charge lacks merit, or it will issue a “right to sue” letter to the complainant. This enables the complainant to file suit in federal court.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. Court decisions have expanded Title VII’s definition of sex discrimination to include sexual harassment. Some of these decisions are now leading courts around the country to expand Title VII protection to discrimination on the basis of sexual orientation and gender identity. New York City discrimination law, unlike federal law, expressly includes both of these as protected categories. Two Supreme Court decisions on sexual harassment have played a significant role in decisions relating to sexual orientation and gender identity discrimination. One decision, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), held that discrimination based on “sex stereotyping” violates Title VII. This year marks the 20th anniversary of the other decision, Oncale v. Sundowner Offshore Services, Inc. (“Oncale II”), 523 U.S. 75 (1998), which held that same-sex sexual harassment is also covered by Title VII.LGBT law

The Supreme Court received the Oncale case from the Fifth Circuit Court of Appeals, which had ruled that Title VII does not apply to harassment between members of the same sex. Oncale v. Sundowner Offshore Services, Inc. (“Oncale I”), 83 F. 3d 118 (5th Cir. 1996). The Fifth Circuit held that it was bound by its own prior decision in Garcia v. Elf Atochem North America, 28 F.3d 446 (5th Cir. 1994). It noted, however, that other courts had reached different conclusions. A concurring opinion from a Second Circuit justice, for example, stated that “harassment is harassment regardless of whether it is caused by a member of the same or opposite sex.” Oncale I at 120 n. 3, quoting Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 148 (2d Cir.1993) (Van Graafeiland, C.J., concurring).

The plaintiff in Oncale was part of an eight-man crew on an oil platform in the Gulf of Mexico. At least three members of the crew, including “the crane operator, and…the driller, [who] had supervisory authority,…forcibly subjected [him] to sex-related, humiliating actions…in the presence of the rest of the crew.” Oncale II at 77. He eventually sued for sexual harassment under Title VII.

sexual harassmentEmployers often use training to address problems among employees, as well as to mitigate their own risk of liability for unlawful employment practices like sexual harassment. New York law, at both the city and state level, will soon require employers to provide sexual harassment training to its managers, supervisors, and employees. The Equal Employment Opportunity Commission (EEOC) also recommends that employers provide trainings, even though federal law does not require them. When settling lawsuits, the agency often requires employers to provide trainings as part of the settlement agreement. Whether sexual harassment trainings are actually effective at preventing future workplace harassment, however, is an unsettled question. In an article published last year in Scientific American, a group of researchers raise this question and explore where change is needed.

Under new laws that have not yet gone into effect, many employers in New York will be required to provide sexual harassment trainings to their employees, including supervisory and managerial employees. The New York Legislature, as part of a budget bill passed in April 2018, added a new section to the Labor Law that requires the state to create “a model sexual harassment prevention training program,” and requires employers to use this program or create their own that meets the same standards.

A new law passed by the New York City Council will require employers with at least fifteen employees to provide sexual harassment training, but it does not direct the city government to create a model program. The law provides a detailed list of topics the training must cover, including the unlawful status of sexual harassment, examples of conduct constituting sexual harassment, company policies regarding reporting and investigating alleged sexual harassment, and complaint processes through government agencies.
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The TWA Flight Center building at John F. Kennedy International Airport, NYCNumerous employment statutes protect workers from employment discrimination in New York City on the basis of various protected categories. These laws’ prohibitions on sex or gender discrimination include sexual harassment in certain forms, including the use of sexual activity as a condition of employment, and patterns of sexually-oriented behavior that create a hostile work environment. These laws also prohibit employers from retaliating against employees who assert their legal rights. A lawsuit filed late last year alleges that supervisors at a security company, which was contracted to provide services at JFK International Airport in Queens, engaged in unwelcome and offensive conduct, including allegedly forcing the plaintiff to watch live video feeds of other employees engaging in sexual activity. Powell v. Allied Universal Security Services et al, No. 1:17-cv-06133, complaint (E.D.N.Y., Oct. 20, 2017). Several more employees have reportedly joined the case as plaintiffs in 2018.

The New York City Human Rights Law (NYCHRL) prohibits employment discrimination on the basis of gender, which includes sexual harassment. N.Y.C. Admin. Code § 8-107(1)(a). At the state level, the New York State Human Rights Law (NYSHRL) contains similar provisions. N.Y. Exec. L. § 296(1)(a). Title VII of the Civil Rights Act of 1964, a federal statute, also provides similar protections, but it is not the only federal law that covers hostile work environment claims. The Civil Rights Act of 1991 specifically addresses racial discrimination in various areas, including employment, and prohibits “impairment” of “the full and equal benefit of all laws and proceedings…as is enjoyed by white citizens.” 42 U.S.C. § 1981.

The lead plaintiff in Powell worked for the defendant at JFK Airport for four years, according to her complaint. She alleges that she was given a choice between “hav[ing] sex with male supervisors and get[ting] ahead,” or “refus[ing] and be[ing] relentlessly harassed and retaliated against.” Powell, complaint at 1. She states that she “chose the latter,” id., and therefore faced discrimination based on race and gender, followed by retaliation for reporting the discrimination.
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Legal Contract & Signature - Cool TonesAsserting a claim for sexual harassment in New York City can be extremely harrowing, even with the city’s progressive employment laws. A claimant might risk professional or personal consequences for speaking out, which is why employees with similar allegations often seek to pool their resources and assert their claims as a group. A recent decision by the U.S. Supreme Court, Epic Systems Corp. v. Lewis, 584 U.S. __ (2018), limits employees’ ability to bring collective actions against their employers in some situations. The case specifically deals with collective arbitration of disputes under the National Labor Relations Act (NLRA), but advocates for people who have experienced sexual harassment worry about the impact of the decision on a wide range of employment claims.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits employment discrimination on the basis of sex and several other factors. The New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq., prohibits employment discrimination based on a wide range of factors that includes sex. Both statutes, according to court interpretations, recognize sexual harassment as a form of unlawful sex discrimination. Employees may file complaints of alleged acts like sexual harassment with administrative agencies. Those agencies investigate the claims, and either pursue the claim themselves or grant the complainants the right to sue for damages in court. Many employment agreements, however, contain clauses that require employees to submit any and all disputes to arbitration.

The Federal Arbitration Act (FAA) of 1925, 9 U.S.C. § 1 et seq., encourages the use of arbitration as a private method of dispute resolution. It states that an arbitration clause in a contract “shall be valid, irrevocable, and enforceable,” unless the contract itself is legally unenforceable or invalid. Id. at § 2. Courts have the authority to compel a party to a contract with an arbitration clause to participate in arbitration, or to hold that party in contempt. Courts may also enforce arbitration awards that it finds to be lawful.
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NYS Capitol PanoramaIn New York City, sexual harassment claims are covered by federal, state, and city law. The New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) offer some of the most comprehensive protection against discrimination in the country. Sexual harassment in the workplace has received a considerable amount of media attention in the past year, and both New York State and New York City have responded by enacting a series of new laws addressing numerous aspects of workplace harassment. The New York State Legislature passed a budget bill, S. 7507/A. 9507, in March, and the Governor signed it into law on April 12, 2018. Part KK of the bill includes multiple sexual harassment provisions. The New York City Council passed seven separate laws dealing with sexual harassment, collectively known as the Stop Sexual Harassment in NYC Act. The Mayor signed them all on May 9.

The new laws overlap on two matters: mandatory anti-harassment training and policies, and requirements for public contractors.

Mandatory Anti-Harassment Training

Subpart E of Part KK of the New York budget bill amends the Labor Law, adding a section that directs the state to develop a “model sexual harassment prevention guidance document” and a “sexual harassment prevention policy.” Employers must adopt the model policy, or one that is consistent with it; must distribute this policy in writing to all employees; and must provide annual anti-harassment training programs. This subpart takes effect on October 9, 2018.
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ModelsCatwalkOver the past year, countless people have come forward with accounts of sexual harassment in the workplace. Known as the #MeToo movement, it began in the entertainment industry, and has expanded to include many other industries and professions. Fashion models have described their experiences with harassment at photo shoots, fashion shows, and other events in New York City. Sexual harassment is covered by laws prohibiting sex discrimination in employment, but the fashion industry presents challenges under laws like the New York State Human Rights Law (NYSHRL). These laws generally apply to “employees.” Many who work in fashion are considered to be independent contractors. In October 2017, an Assemblywoman from Queens introduced A08572, the “Models’ Harassment Protection Act” (MHPA). This bill would amend the NYSHRL to include provisions specifically applying to the types of sexual harassment that models often experience, and to account for the employment relationship between model and designers, photographers, and others.

The U.S. Supreme Court established that the prohibition on sex discrimination in employment under federal law includes sexual harassment. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). New York courts have made the same determination with regard to the NYSHRL. See, e.g. Belle Ctr. v. Human Rights Div., 221 A.D.2d 44, 49-50 (N.Y. App. Div., 4th Dept. 1996).

Plaintiffs can allege two types of sexual harassment under these laws. Quid pro quo sexual harassment occurs when a “supervisor…expressly or tacitly link[s] tangible job benefits to the acceptance or rejection of sexual advances,” regardless of how the plaintiff responds to said advances. Id. at 50. Hostile work environment occurs when pervasive and unwelcome conduct of a sexual nature “alter[s] the conditions of the [plaintiff’s] employment.” Id. Neither theory of sexual harassment requires proof of economic loss, but a quid pro quo claim requires “proof of linkage between the offensive conduct and decisions affecting employment.” Id. at 50-51.
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Penguins on icebergSexual harassment is an unlawful form of sex discrimination under employment statutes in New York City and around the country. It is often a result of an individual taking advantage of their power or authority in the workplace over a subordinate. It could take the form of demands for sexual activity of some sort as a condition of employment, or a pattern of unwanted sexual remarks or advances. In either case, the alleged harasser relies to a large extent on the alleged victim’s inability to speak out directly against the behavior. Statutes like the New York City Human Rights Law and Title VII of the Civil Rights Act of 1964 allow individuals who have experienced unlawful New York sexual harassment to file an administrative complaint, followed by a civil lawsuit. Some scenarios in which sexual harassment may occur, however, are not “workplaces” under the meaning of laws like Title VII. Sexual harassment can occur in academic settings, and Title IX of the Education Amendments of 1972 provides recourse in those situations. In late 2016, several former graduate students complained of sexual harassment by a professor. An internal investigation by the university resulted in the professor’s dismissal a year later. The story made headlines largely because the alleged harassment did not occur in a classroom or laboratory, but instead during research trips to Antarctica.

When sexual harassment occurs in an educational setting, employment anti-discrimination statutes might not apply. Title IX prohibits discrimination by certain educational institutions on the basis of sex. 20 U.S.C. § 1681(a). Federal funding is the main factor determining whether Title IX applies to a particular educational institution. A series of U.S. Supreme Court decisions have established that Title IX allows civil claims for sexual harassment by teachers, professors, or other employees against students, provided that the school administration knew about the alleged harassment and failed to take appropriate action. Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992); Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998).

The cases involving research trips to Antarctica mentioned above involved three former graduate students and the geology department chair at Boston University (BU). The complaints allege numerous acts of sexual harassment during trips to Antarctica between 1999 and 2001, when the department chair was an assistant professor. Antarctica is the fifth-largest continent in the world—larger than Europe or Australia—but because of its location at the South Pole, it is almost entirely covered with ice. It has no permanent population. The only residents temporarily inhabit scientific research stations. The continent is not under the jurisdiction of any particular nation, but any nation’s presence there is governed by international treaties. U.S. laws generally apply to Americans in Antarctica.

beer pongRecent media and public attention has helped shed light on sexual harassment in workplaces all over the country, including New York City. Employees have several means to fight back against such unlawful employment practices, but the attention to the issue since last fall has helped many employers identify and deal with individuals, policies, and practices that contribute to workplace sexual harassment. Laws like the New York City Human Rights Law (NYCHRL) allow employees to recover damages once New York City sexual harassment has occurred. The hope, of course, is that this attention will make workplace sexual harassment less common in general. Allegations of sexual harassment at a finance and technology startup company last year led to the CEO’s resignation, between the filing of two lawsuits against the company. Charles v. Social Finance, Inc., No. CGC-17-560682, complaint (Cal. Super. Ct., San Francisco Cty., Aug. 11, 2017); Zamora vs Social Finance, Inc., No. SCV-261312, complaint (Cal. Super. Ct., Sonoma Cty., Sep. 21, 2017).

In New York City, laws at the city, state, and federal levels prohibit sex discrimination in employment. Each of these statutes, while not expressly mentioning sexual harassment, has been construed to prohibit sexual harassment as part of its provisions on sex discrimination. One particular form of prohibited sexual harassment under the NYCHRL and other laws is known as “hostile work environment.” This involves a pattern of unwanted sexual behavior, ranging from remarks, comments, or jokes to overtures or actual physical contact, that is pervasive enough to interfere with a person’s ability to do their job. The behavior does not necessarily have to come from individuals in a superior workplace position to the complainant, provided that the employer knows about it but has failed to act.

The defendant in the lawsuits mentioned above is a Silicon Valley startup that provides online lending services. The company received positive coverage in the media for “stretching the definition of what a lender should do” by providing services beyond those directly related to a lender/borrower relationship. Beginning in early to mid-2017, however, stories began to emerge that showed a very different side of the company. Not at all unlike many New York City finance companies, current and former employees described an alleged “frat house culture” that included frequent sexual banter and actual sexual activity on company property.

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