Articles Posted in Sexual Harassment

Laws at the city, state, and federal levels in New York City prohibit discrimination by employers on the basis of sex, and they all include sexual harassment in their definitions of sex discrimination. This can involve harassment by a member of any sex against a member of the same or any other sex. That said, most New York City sexual harassment attorneys would probably tell you that the type of case they still most commonly encounter involves a male supervisor or manager harassing a female employee. A lawsuit that is currently pending in a New York City federal court presents this sort of scenario. The plaintiff is alleging causes of action under laws at all of the three levels we mentioned above. The defendants include the City of New York, the police department, and multiple public officials. As a result, the lawsuit also asserts a cause of action for civil rights violations.

Sexual harassment constitutes sex discrimination in two general circumstances:
1. Quid pro quo sexual harassment: Agreeing or submitting to sexual advances or demands is a condition of getting a job, keeping a job, or other terms or conditions of employment. For example, a movie producer refuses to cast someone unless they agree to sexual activity in some form, or a restaurant manager gives the best shift assignments to servers who meet the manager’s sexual demands.
2. Hostile work environment: Pervasive and unwelcome sexual behavior renders the workplace unreasonably hostile and impedes a person’s ability to do their job. For example, an employee is repeatedly subjected to unwanted sexual comments or touching, or management refuses to address a work environment laden with inappropriate and offensive jokes.

The plaintiff in the lawsuit described earlier states in her complaint that she began working for the NYPD as an officer in 2012. She alleges that in 2015, her direct supervisor began subjecting her to a hostile work environment in the form of “unwanted physical contact” and “highly inappropriate sexual comments.” She further alleges that, after she informed the supervisor that his conduct was not welcome, her superiors reassigned her to a position she did not request, and which she states was generally “considered undesirable.” This, she claims, was retaliation for her “unwillingness to engage in sexual and promiscuous activities with male officers.”

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The coronavirus has had a massive impact on people’s lives, and their jobs, in a very short span of time. In order to slow the spread of the virus, and to give the healthcare system more time to adapt and prepare, local and state governments are urging people to practice “social distancing.” Governors and mayors have ordered businesses to cut their hours, or to close down substantial parts of their operations. As many forms of economic activity have slowed, companies have begun laying off employees. This is not, in itself, unlawful, but as New York employment discrimination attorneys are aware, it is not always the layoffs themselves that are legally problematic — it is the way in which employers carry out the layoffs.

Employment at Will

New York is an “at will” employment state, meaning that an employer may fire an employee for any reason, or no reason at all, as long as it does not violate contractual obligations, internal policies, or the law. An employer cannot fire someone because of their race, religion, sex, or another protected category, nor can they fire them in a way that creates a hostile work environment on the basis of a protected category.

Harassment and Hostile Work Environment

Antidiscrimination laws at all levels in New York City treat harassment on the basis of sex, race, national origin, and other factors as a form of unlawful discrimination.

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Domestic workers make up a significant portion of the workforce in the U.S., but few employment statutes provide protection for them against sexual harassment and other unlawful acts. New York City employment discrimination attorneys can draw on state law, which include provisions specifically covering domestic workers, but there are no nationwide protections. Last summer, members of Congress introduced the National Domestic Workers’ Bill of Rights (NDWBOR). This comprehensive bill would amend the employment discrimination, harassment, and retaliation provisions of Title VII of the Civil Rights Act of 1964. It has yet to receive a hearing in either chamber of Congress.

What Is a Domestic Worker?

New York defines a “domestic worker” as an individual “employed in a home or residence” for certain purposes, including:
– Housekeeping;
– Child care; and
– Companionship for “a sick, convalescing or elderly person.”
N.Y. Lab. L. § 2(16).

The definition does not apply to a person who is related to the employer, or who provides services “on a casual basis.” Id. State law also omits people who provide babysitting or elder care services “on a casual basis,” as described in the Fair Labor Standards Act (FLSA). 29 U.S.C. § 213(a)(15).
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Employment statutes that prohibit discrimination on the basis of sex and other factors require employers to take reasonable actions to prevent discrimination and harassment in the workplace, and to remedy the situation when they know (or should know) that discrimination or harassment has allegedly occurred. New York sexual harassment attorneys can allege an employer’s failure to remedy a known situation as a distinct unlawful employment practice in violation of city, state, or federal law. A lawsuit filed in early 2020 by a New York City resident claims that her employer failed to act after its own investigation substantiated her allegation of assault by a co-worker. She is asserting causes of action for sexual harassment, sex discrimination, and retaliation.

Sexual harassment is a form of unlawful discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964, as well as New York City and State law. The Equal Employment Opportunity Commission (EEOC), which investigates alleged violations of Title VII, states that “petty slights” and “annoyances” typically do not “rise to the level of illegality.” It also maintains that “isolated incidents” do not constitute unlawful harassment “unless extremely serious.”

Employers are vicariously liable for many unlawful acts perpetrated by supervisors and managers against employees. If the alleged harassment is carried out by someone who is not in a supervisory position over a plaintiff, such as a co-worker or customer, the plaintiff must demonstrate that the employer knew or should have known about the harassment, and that they failed to make prompt and reasonable efforts to remedy the situation.

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Multiple employment statutes protect workers’ rights in New York City. Sexual harassment attorneys can bring claims in state court under city or state law, or they can file in federal court in some situations. Each of these statutes view sexual harassment as a form of discrimination on the basis of sex. This is true regardless of the sex or gender of the individuals involved. The archetypal sexual harassment scenario involves harassment of a female employee by one or more male managers, supervisors, or coworkers. This kind of case appears to comprise the majority of New York sexual harassment complaints filed with state and federal enforcement agencies. A lawsuit recently filed in a Manhattan court, however, demonstrates how female supervisors can allegedly commit unlawful sexual harassment against male employees.

The New York City Human Rights Law prohibits discrimination on the basis of numerous factors, including sex and gender. The New York State Human Rights Law includes protections against workplace discrimination on the basis of most of the same factors as city law. At the federal level, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of five factors, including sex. Sexual harassment has been recognized as unlawful sex discrimination nationwide since the U.S. Supreme Court’s ruling in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), which involved harassment of a female employee by a male supervisor. Twelve years after issuing that ruling, the court recognized same-sex sexual harassment as a violation of Title VII in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

The Equal Employment Opportunity Commission (EEOC) investigates alleged violations of Title VII and other federal statutes. A complaint to the EEOC is a prerequisite to filing a federal lawsuit. Statistics published by the EEOC only show complaints based on Title VII claims, not New York City or New York State law. The EEOC’s numbers still offer insight into what workers around the country are reporting. From fiscal year 2010 to 2019, the EEOC received an average of about 7,284 complaints of sexual harassment per year. Men made an average of 16.8 percent of those complaints.

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New York sexual harassment attorneys can choose from among several employment statutes dealing with sex discrimination. This gives the city some of the most robust employee protections in the country, and yet sexual harassment and other unlawful workplace practices remain serious problems. An advocacy group seeking to improve the state’s sexual harassment laws has announced its support for several pending bills in Albany over the past year, including a bill that targets harassment by individuals working in government. Another bill would address ambiguity in the legal standard for unlawful harassment. Both bills are currently pending in State Assembly or Senate committees.

New York State Sexual Harassment Law

The New York State Human Rights Law (NYSHRL), N.Y. Exec. L. § 290 et seq., prohibits employers from discriminating on the basis of sex and numerous other factors. Sexual harassment is considered unlawful sex discrimination in two scenarios. First, quid pro quo sexual harassment occurs when a person must submit to some sort of sexual demand as part of their employment. The demand can range from tolerating inappropriate remarks or jokes to sexual activity. The second form of sexual harassment occurs when unwelcome sexual conduct is severe or pervasive enough to create a hostile work environment.

Pending Legislation

A group known as the Sexual Harassment Working Group is promoting several pending bills that take on deficiencies in state law.

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The Office of the New York State Attorney General (AG) announced in early January 2020 that it had reached a settlement with a restaurant owner accused of sexual harassment. New York City sexual harassment law protects workers from harassment on the basis of sex through statutes at the federal, state, and local levels. The AG’s complaint included alleged violations of city and state law. Under the settlement agreement, the restaurant owner will pay a six-figure sum to eleven former employees, followed by a share of the restaurant’s profits for the next decade.

Sex discrimination is considered an unlawful employment practice under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL). Court decisions have established that sexual harassment is a type of sex discrimination. Both state and city law specifically mention sexual harassment as an unlawful practice. The NYSHRL, for example, mentions sexual harassment in its definition of “employer.” N.Y. Exec. L. § 292(5). The NYCHRL identifies sexual harassment as a violation of public policy. N.Y.C. Admin. Code § 8-101.

Unlawful sexual harassment occurs when unwelcome sexual conduct is severe or pervasive enough to create a hostile work environment, or when submitting to sexual conduct is a condition of one’s employment. The objectionable conduct may range from bawdy jokes to outright sexual assault.

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The television industry is constantly trying to find new ideas and stories to present to the public. The genre commonly known as “reality television” allows producers to create large amounts of content with relatively small budgets. It has proven to be a very popular and lucrative genre over the past twenty years, but it has also generated its share of controversy. In late 2019, the producers of one of the longest-running reality shows in the country addressed allegations that are familiar to New York City sexual harassment attorneys with knowledge of the entertainment business. Several female contestants on a reality competition show complained of inappropriate behavior by a male contestant. The showrunners eventually removed the male contestant from the show, and have pledged to change their policies for future seasons of the show.

The set of a television program is a workplace, just like an office, store, factory, or warehouse. Everyone working on or around a set is entitled to a workplace free of unlawful sexual harassment. Laws like the New York City Human Rights Law and Title VII of the Civil Rights Act of 1964 view sexual harassment as a form of unlawful sex discrimination. Pervasive and unwelcome sexual remarks, unwanted touching, and other nonconsensual behavior on a set constitute sexual harassment in violation of the law.

The reality television controversy mentioned earlier involves one of the first such shows to find a large audience in the U.S. Its first season aired in the spring and summer of 2000, and its network has broadcast new seasons at a rate of about two per year. The controversy occurred during the filming and airing of the show’s thirty-ninth season. The show’s premise involves organizing groups of strangers into teams and placing them in a remote location, often on a tropical island in the Pacific or Indian Ocean. The contestants must fend for themselves to a large extent, and they must participate in various challenges to gain points. Each week, one or more contestants is eliminated from the show, until only one person remains.

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In the past few years, vast numbers of people have spoken out about New York sexual harassment. Before allegations of widespread harassment and abuse by a prominent Hollywood producer sparked the #MeToo movement in late 2017, a series of allegations emerged a year earlier in New York City. Sexual harassment lawsuits against a major news network and its CEO resulted in the termination of several major figures, including the CEO himself. The public is not aware of the details of the settlements, or many details of the cases themselves, because of non-disclosure agreements (NDAs) signed by the plaintiffs. NDAs are fairly common as a way for employers to protect trade secrets, but they can also serve to keep the details of sexual harassment lawsuits out of the news. This might protect employers’ interests, but as the cases at the heart of #MeToo suggest, NDAs can place employees at risk by denying them important information. A former anchor for the news network has asked to be released from the NDA she signed as part of her settlement.

Antidiscrimination laws like the New York State Human Rights Law prohibit discrimination in the workplace on the basis of sex. This includes situations when submission to sexual demands is a condition of employment, known as quid pro quo sexual harassment; or when unwelcome sexual conduct creates a hostile work environment. The claims arising from #MeToo often describe people in a position of power, usually but not always men, using that power to coerce employees, often but not always women, into sexual situations. This could involve demands for sexual contact of some sort, or a work environment filled with sexual banter.

NDAs have traditionally sought to protect a company’s trade secrets by restricting current and former employees’ ability to disclose confidential or proprietary information. NDAs that prohibit disclosure of sexual harassment allegations exist on shakier legal ground. The National Labor Relations Board ruled in 2002 that employers cannot generally prohibit their employees “from discussing their sexual harassment complaints among themselves.” The NDAs that could be enforceable essentially involve a contractual exchange: the employer pays a settlement, and the employees signs an NDA. If the employee violates the NDA, they could be obligated to return the entire settlement amount. It would not be overstating it to say that this involves buying people’s silence. New York law sets limits on NDAs in sexual harassment cases, but allows them in certain situations.

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In the fall of 2017, multiple women came forward with allegations of sexual harassment against a well-known Hollywood producer. This launched a movement that became known as #MeToo, named for the hashtag used on the social media service Twitter by people sharing their own accounts of sexual harassment in the entertainment business and other industries. Eventually, more than eighty women would come forward with allegations of sexual misconduct by the producer. Numerous women filed suit against him and his studio for sexual harassment and other claims. Our New York City sexual harassment lawyers noted that the lawsuits included a suit by the New York Attorney General. In mid-December 2019, several parties announced a tentative settlement agreement, but not all of the parties seem to be happy with it.

Sexual harassment is considered a form of unlawful employment discrimination on the basis of sex under most employment statutes in the U.S., including New York City and New York State. The allegations against the producer largely take the form of one particular type of unlawful sexual harassment, known as quid pro quo sexual harassment. This occurs when submitting to demands for sexual conduct of some kind is a condition of employment. In the entertainment business, the term “casting couch” is essentially shorthand for quid pro quo sexual harassment. It refers to scenarios in which an actor or actress must give in to the sexual demands of a director or producer in order to get a part.

The New York Times published an article in October 2017 featuring accusations of sexual harassment and other misconduct by the producer. Multiple women described scenarios in which the producer allegedly made their success in Hollywood contingent on sexual activity, regardless of what the actresses wanted. The Times also reported a series of settlements with women who had made similar allegations, going back more than twenty-five years. The film studio that the producer co-founded announced shortly afterwards that it had fired him in response to these allegations.

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