Articles Posted in Sexual Harassment

Appetizer at Applebee'sServers in restaurants are in a particular position of vulnerability to unlawful employment practices like sexual harassment. New York City, with its abundance of restaurants, offers countless examples, but it is a nationwide problem. Job positions for servers can be very competitive, and supervisors have considerable discretion regarding shift assignments. Furthermore, most servers are dependent on tips for their income. This places many servers in a position in which they could face harassment not only from supervisors and managers, but also from customers. A server may hesitate to speak out about harassment by a customer for fear of losing tips, and they may fear speaking out against their employer for fear of losing shift assignments or their job. A lawsuit filed last year by the Equal Employment Opportunity Commission (EEOC) offers an example of the sort of environment that servers face throughout the country. EEOC v. New Apple, Inc., No. 4:17-cv-01150, 2nd am. complaint (D.S.C., Dec. 14, 2017).

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of multiple factors, including sex. Through amendments to the statute and Supreme Court decisions, the definition of sex discrimination has expanded since 1964 to include pregnancy discrimination and sexual harassment. The courts have identified two broad categories of sexual harassment. Quid pro quo sexual harassment occurs when a supervisor or manager demands sexual activity in some form as a condition of employment, such as when a restaurant manager demands sexual favors from a server in exchange for the most lucrative shift assignments. A hostile work environment occurs when a general environment of unwelcome and inappropriate conduct of a sexual nature interferes with the server’s ability to do their job.

The EEOC is charged with investigating alleged Title VII violations. Claims of sexual harassment and other forms of discrimination under Title VII usually begin with a complaint filed with the EEOC. If, once the EEOC completes its investigation, it finds a reasonable basis to conclude that unlawful employment practices occurred, it may try to resolve the matter with the employer without litigation. It files suit directly against employers in some cases, or else it provides the complainant with a “right to sue” letter that authorizes them to file suit themselves in federal court.
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cityscapeThe New York City Human Rights Law (NYCHRL) is among the most comprehensive anti-discrimination statutes in the country, protecting employees and job applicants against discrimination, harassment, and retaliation on the basis of a wide range of factors. Much like state and federal employment statutes, New York City’s employment law treats sexual harassment as a form of unlawful sex discrimination. City law differs, however, in its requirements for establishing a hostile work environment. Some lawmakers worry that the statutes in their jurisdictions impose too great a burden on employees alleging sexual harassment in the form of a hostile work environment, and they are looking to the NYCHRL for new ideas. In January 2018, a California state senator held a public hearing on the “severe or pervasive” standard in hostile work environment claims. The hearing included testimony by the New York City Human Rights Commissioner.

Under California law, a plaintiff alleging a hostile work environment must establish that the alleged harassment was “pervasive or severe.” Cal. Civ. Code § 51.9(a)(2). The U.S. Supreme Court has held that a hostile work environment constitutes unlawful sex discrimination under federal law when the harassing behavior is “severe or pervasive enough to create…an environment that a reasonable person would find hostile or abusive.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). California courts have adopted this standard for sexual harassment claims under state law. Lyle v. Warner Bros. Television Productions, 42 Cal.Rptr.3d 2, 12 (2006). The California Supreme Court has identified “[c]ommon sense, and an appropriate sensibility to social context” as a guide in determining whether conduct is sufficiently “severe.” Id. at 16. To meet the “pervasive” requirement, a plaintiff “must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” Id.

The “severe or pervasive” standard has been criticized for overlooking all but the worst instances of workplace harassment. According to one New York appellate court, it has “routinely barred the courthouse door to women who have, in fact, been treated less well than men because of gender.” Williams v New York City Hous. Auth., 61 A.D.3d 62, 73 (N.Y. App., 1st Div. 2009). Judicial interpretations of the NYCHRL therefore do not “simply mimic[] its federal and state counterparts.” Id. at 74. Based on findings that the “severe or pervasive” standard “unduly narrows the reach of the law,” the NYCHRL requires a plaintiff claiming a hostile work environment to prove “that she has been treated less well than other employees because of her gender.” Id. at 78.

The past few months have seen a marked and much-needed shift in the attitudes of many people in Hollywood, as countless instances of celebrity sexual harassment and abuse have been revealed. Indeed, according to a recent news report, last week’s Golden Globe ceremony saw many of the Hollywood elite donning all black to express their solidarity with the #MeToo movement. Just like people who have been harassed in Hollywood, people in New York City have the right to bring New York sexual harassment claims when they have been victimized by wrongful conduct.

Director's ClapperThe #MeToo movement was started in October of last year by social activist Tarana Burke. After Burke created the hashtag, many well-known actresses encouraged their followers to tweet their own stories of sexual harassment or abuse. Since then, the movement has expanded to many other industries and pulled away the curtain in front of sexual abuse and harassment in the workplace.

While it is not the only industry in which women have faced decades of sexual abuse, harassment, and unequal pay, the entertainment industry has been on the forefront of vocalizing that the previously tolerated practice will no longer be accepted. During last week’s Golden Globe ceremony, host Seth Meyers opened the show by denouncing one famous producer recently accused of engaging in rampant sexual assault and harassment over the past several decades.

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Earlier this month, a federal appellate judge on the United States Court of Appeals for the Ninth Circuit retired amid allegations that he engaged in sexual harassment and unwelcome touching over the course of his 32 years on the bench. According to a recent report by the New York Times, at least 15 women have come forward to report that the judge sexually harassed them through unwanted sexual comments or physical contact, including kissing, hugging, and groping. These allegations are not unlike those in many New York sexual harassment cases.

Judge's GavelThe judge apologized to those whom his conduct affected. However, his comments following his sudden retirement fell short of acknowledging any inappropriate conduct, citing the fact that he has a “broad sense of humor and candid way of speaking.”

One woman who had served as a clerk for another judge on the Ninth Circuit came forward, telling reporters that the judge suggested she exercise naked. She explained that the power dynamics in the legal profession made it difficult for her to come forward with allegations against a sitting judge. Now a professor at a California law school, the former clerk told reporters that she owes it to the next generation of lawyers to create a better version of the legal profession.

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people-coffee-meeting-team-7096The past few months have seen proverbial dams burst with regard to sexual harassment allegations in places like Washington, D.C. and Hollywood. People—perhaps mostly, but not exclusively, women—who have long felt that coming forward would endanger their careers, or even their safety, finally feel that they can tell their stories. Months before the first allegations against Hollywood producers and Washington politicians began to dominate the news cycle, female entrepreneurs and tech workers in Silicon Valley, New York City, and elsewhere around the country were exposing cultures of sexual harassment in the startup world. The nature of the startup scene, however, presents certain legal challenges. Employment statutes prohibiting New York City sex discrimination and sexual harassment allow employees to file suit against their employers, but the relationship between startup founders and investors is not always that of employee and employer. In the absence of direct legal relief through anti-discrimination laws, entrepreneurs and investors are trying other methods to combat sexual harassment.

Laws like Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law (NYSHRL) prohibit employment discrimination based on a person’s sex. Sexual harassment, which includes a range of unwelcome, sexually oriented behaviors, from bad jokes to outright assault, constitutes unlawful sex discrimination when it is severe enough to create a hostile work environment impeding an individual’s ability to do their job, or when an employer makes sexual activity a condition of employment.

In order to successfully assert a claim for sexual harassment under Title VII, the NYSHRL, or another statute, a plaintiff must demonstrate an employment relationship. This is not present in many encounters between entrepreneurs and investors. A common, and often defining, feature of a “startup” company is an inability to meet operating costs through business revenue. Many startups spend years developing a product or service before even expecting such revenue. Instead, they rely on funding from investors. Venture capitalists (VCs) provide funding to startup businesses in exchange for stock in the company, and they often place one or more people on the company’s board of directors. If a VC sexually harasses an entrepreneur prior to this part of the funding process, the entrepreneur may have no recourse under existing anti-discrimination laws.
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Over the past few months, the news headlines have been laden with allegations of sexual misconduct and abuse. It seems that no industry is immune to inappropriate sexual conduct in the workplace. And with the holiday season approaching, many employees and employers are going to be on their toes more than ever.

Christmas TreeTo many, the idea of a workplace holiday party brings to mind images of over-consuming professionals in a casual environment acting without due regard for the normal workplace mores. However, too often what is claimed to be “innocent fun” by one party to the conversation is neither innocent nor fun to the other. And it isn’t just employees who are concerned about unwanted sexual advances or misconduct; employers fear the legal liability and negative press that accompany New York sexual harassment at a holiday party.

According to a recent news article, due to the current climate of rampant sexual misconduct, many employers are rethinking the way they plan their holiday parties in hopes of curbing any sexual misconduct that may occur. The biggest difference seems to be whether the company will provide alcohol and, if so, how much is provided.

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Workplace bullying is a pervasive problem, with one study finding that nearly three-fourths of surveyed employees had experienced bullying in their jobs. Legal protections are often only available to the extent that workplace bullying also constitutes discrimination or harassment on the basis of a protected category, which includes sexual harassment. New York City sexual harassment laws might then allow a cause of action. A story that appeared in news media earlier this year offers an example of alleged bullying—specifically, efforts to shame a coworker after she reported alleged sexual harassment by a supervisor—that might have supported a claim for sexual harassment. This particular case, however, appears to have been resolved without litigation.

person-homeless-bullied-hiding-1821412The Workplace Bullying Institute (WBI) defines the term to include verbal abuse, interference with a person’s work, and other acts aimed at “threatening, humiliating, or intimidating” someone. “Bullying” is not a legal term, but it might meet the legal definition of sexual harassment if it is primarily based on a person’s sex, and it creates a hostile work environment that interferes with that person’s ability to perform their work responsibilities.

While not using the actual word “bullying,” several landmark decisions from the U.S. Supreme Court demonstrate the close connection between bullying and sexual harassment. The court first recognized sexual harassment as an actionable form of sex discrimination in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The court held that unlawful sexual harassment occurs when the harassing behavior is “severe or pervasive” enough “to alter the conditions of…employment and create an abusive working environment.” Id. at 67. Several years later, the court clarified that a plaintiff does not have to show that the hostile work environment was severe enough “to cause a tangible psychological injury.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). A plaintiff must show both that they “subjectively perceive the environment to be abusive” and that “a reasonable person would find [it] hostile or abusive.” Id.

blue rosesSexual harassment in the workplace can take many forms, from inappropriate comments to sexual assault. When alleged sexual harassment involves alleged assault, a claimant might be able to assert both statutory and common-law causes of action. This potentially raises questions about preemption. Disputes between employees and employers tend to fall under the purview of employment statutes like the New York State Human Rights Law (NYSHRL), while tort claims like assault are based on common law. The Texas Supreme Court ruled earlier this year that the state’s employment statute does not preempt an employee’s tort claim alleging sexual assault by a supervisor when “the gravamen of a plaintiff’s claim is not harassment, but rather assault.” BC v. Steak N Shake Operations, Inc., No. 15-0404, slip op. at 1 (Tex. Sup. Ct., Feb. 24, 2017).

Multiple New York employment discrimination statutes prohibit discrimination by employers on the basis of sex. Sexual harassment is considered a type of sex discrimination when it involves a “quid pro quo” demand for sexual activity as a condition of employment, or when it creates a hostile work environment that prevents an employee from doing their job. Employers can be held strictly liable for sexual harassment by supervisors, managers, or executives. They may be liable for sexual harassment by coworkers when they knew or should have known about the harassment but failed to take reasonable steps to stop or prevent it. A single incident, if severe enough, could support a claim for quid pro quo sexual harassment or hostile work environment.

The plaintiff in BC worked at a restaurant owned and operated by the defendant in the Dallas, Texas area. She alleged in her lawsuit that a supervisor, who “had neither spoken nor acted in a sexually suggestive manner” before, sexually assaulted her during an overnight shift at the restaurant in October 2011. BC, slip op. at 2. She sued the defendant and the supervisor, asserting multiple tort claims, including assault, sexual assault, and battery.

beerThe tidal wave of news stories that has emerged in the aftermath of the Hollywood sexual harassment scandal has caused many to take a fresh look at sexual harassment in the workplace and the pervasiveness of the problem. No matter how extensive the problem is, any number of instances is too many. No one should suffer through sexual harassment simply as they try to pursue their career, which is why laws exist to protect those victimized. If you’ve been sexually harassed at work, you should not suffer in silence but instead should take action to protect your rights, including contacting a New York sexual harassment attorney to discuss your options.

With all this in mind, employers should be more vigilant than ever when it comes to sexual harassment. Author Patrick Krill, a behavioral health consulting firm focused exclusively on the legal industry, recently opined in a piece published at law.com about one important area when it comes to reducing sexual harassment, which is alcohol and the workplace.

While there are many reasons why sexual harassment occurs, some varieties of harassment take place because the harasser’s inhibitions are lowered by alcohol. In some professions, and the legal profession is an example, alcohol is a part of the business culture. The drinking culture is, as the author stated, “the way it’s always been in the legal profession.”

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).

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