Articles Posted in Sexual Harassment

As the holiday season swings into full gear, many employees and employers will face issues that may arise at company holiday parties. These parties are often designed to celebrate a successful year and reward employees for their dedication and hard work. However, the nature of these events often leads individuals to lower their inhibitions and potentially engage in unacceptable and offensive behavior. New York employees facing such discrimination at these office events should contact a New York employment discrimination attorney to address their claims.

Both New York and federal laws that protect against employment discrimination extend to off-hours and off-site work events. Additionally, employers should take precautionary steps by advising their employees on acceptable workplace behavior. However, despite the training, education, and risk of termination, employers and co-workers still engage in this unlawful behavior.

In addition to federal protections covering race, color, religion, national origin, sex, disability, age, citizenship status, and genetic information, New York City law prohibits qualified employers from discriminating against an employee based on their creed, actual or perceived age, marital or partnership status, pregnancy, military status, or caregiver status. Additional protections exist covering criminal and arrest history, sex offenders, and domestic violence victims. The federal protections apply to employers with more than 15 employees, and New York City protections apply to employers with more than four employees. Claims regarding sexual harassment do not have an employee minimum.

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Many New York employers are recognizing the importance of flexibility, camaraderie, and team building in developing a reliable and robust workforce. To meet these goals, many employers organize office retreats, family events, and annual holiday parties. However, these events, especially ones including alcohol, can lead to unwanted sexual harassment. Employees who suffer sexual harassment by their New York employer should understand their rights and remedies. Individuals who suffer sexual harassment by their employer or at their workplace should contact a New York sexual harassment attorney to discuss potential recourses.

According to a recent news report, research indicates that over half of companies throwing holiday and end-of-the-year parties will serve alcohol, a five percent increase from 2017. Moreover, studies show that serving alcohol increases the risk of workplace sexual harassment. Employers should take steps to mitigate the risk of unwanted sexual advances and harassment by educating their employees on appropriate standards of behavior and consent.

New York employees who do suffer sexual harassment at an off-site or off-work hours event may still hold their company liable for their harm. Typically, employees understand what constitutes sexual harassment in an office setting, but after-hours harassment may not be as clear. New York law defines sexual harassment as any unwanted sexual advances. These advances can be verbal, physical, or sexual. Some typical example of sexual harassment at a holiday party may include:

• Inappropriately commenting on a co-worker’s body or attire
• Coercing someone to drink to lower their inhibitions
• Attempting to kiss or grope a co-worker
• Making off-color sexual jokes

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In order to assert a claim under New York City sexual harassment laws, a plaintiff must usually demonstrate that an employment relationship existed between the plaintiff and the defendant. When the plaintiff and the alleged harasser received paychecks from the same entity, establishing this relationship is straightforward. Many workplaces present a much more complicated picture, though. Businesses often use a complex system of outsourcing through contractors in an effort to cut costs. This can cause confusion with regard to liability. New York courts, fortunately, have ruled that the definition of “employer” is not very strict in claims under Title VII of the Civil Rights Act of 1964, which governs many New York City sexual harassment claims.

Employers may be liable for third-party sexual harassment, meaning harassment against an employee by someone other than a fellow employee, such as a contractor, customer, or client. If the employer was aware that harassment was occurring, and they failed to take reasonable actions to prevent it or remedy the situation, they may be held liable under Title VII. This is similar to the standard for a hostile work environment created by a co-worker or another employee who is not in a position of authority over a plaintiff. The alleged harasser might not have direct control over the plaintiff’s employment, but they still have the power to make the workplace unbearable.

A 1981 decision by the U.S. District Court for the Southern District of New York (SDNY) addressed this type of situation. The plaintiff was employed by a company that had a contract to provide property management services at a Manhattan office building, although there was some confusion as to the exact employment relationship. She worked as a lobby attendant, which partly involved “offer[ing] assistance and information to people entering the building and k[eeping] those who did not belong in the building from loitering.”

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The restaurant industry is very familiar to New York City sexual harassment attorneys. The business model and managerial structure of many restaurants might never have been intended to foster multiple forms of sexual harassment, but that is exactly what happens far too often. Competition for shift assignments can lead unscrupulous supervisors and managers to take advantage of the power their positions give them. Reliance on tips can make servers hesitate to report or otherwise call out harassment. Behavior that creates a hostile work environment can go unchallenged as a result. Thankfully, many people are standing up for their rights. The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing antidiscrimination law, recently filed a lawsuit on behalf of several women alleging sexual harassment by a chef at a restaurant in Upstate New York.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of sex and several other factors. 42 U.S.C. § 2000e-2(a). The EEOC recognized sexual harassment as a form of sex discrimination in violation of Title VII in the early 1980s. Court decisions and administrative rulings have expanded the legal definition of sexual harassment over the years.

Federal law now recognizes two general categories of sexual harassment. 29 C.F.R. § 1604.11(a). Quid pro quo sexual harassment occurs when giving in to unwelcome demands for some sort of sexual activity is made a condition of someone’s employment or is the basis for employment decisions, including hiring and firing. A hostile work environment occurs when pervasive and unwelcome sexual conduct prevents a person from doing their job.

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Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, including sexual harassment, in employment throughout the country, including New York City. Sexual harassment is not limited to the workplace, and Title VII is not the only federal statute that views sexual harassment as unlawful discrimination. Title IX of the Education Amendments of 1972 prohibits sex discrimination in education. This includes sexual harassment of students by teachers or other employees, and harassment between students. Members of the women’s college swimming team filed a lawsuit in a New York federal court against their school in September 2019. They allege that the school failed to act on their complaints of sexual harassment by members of the men’s team. If you feel you are suffering from harassment that is sexual in nature, contact a New York City sexual harassment attorney to learn what your rights are under the law.

Title IX prohibits any educational institution that receives federal funding from discriminating on the basis of sex in terms of access to educational opportunities and benefits, and participation in educational activities. 20 U.S.C. § 1681(a). The federal regulations implementing Title IX do not provide the kind of specific guidance that is available for Title VII claims for sexual harassment. See 29 C.F.R. § 1604.11. The swimmers’ lawsuit cites several regulations, however, that demonstrate how sexual harassment can deny equal educational opportunity. This includes “equal athletic opportunity.” 34 C.F.R. § 106.41(c).

The U.S. Supreme Court first recognized a private cause of action for sexual harassment under Title IX in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). That case involved a teacher and a student. The following year the court ruled on a student’s claim of sexual harassment by another student in Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999). The elements of a claim for student sexual harassment, outlined in Davis, are similar to the elements of a hostile work environment claim under Title VII. A plaintiff must demonstrate that the school “act[ed] with deliberate indifference to known acts of harassment,” and that the harassment was “so severe, pervasive, and objectively offensive” as to prevent “access to an educational opportunity or benefit.” Id. at 633.

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Sexual harassment is unfortunately still a common occurrence in the entertainment industry. New York City sexual harassment attorneys have represented plaintiffs in television, film, music, and theater, to name only a few areas. In August 2019, several individuals involved with opera productions around the country came forward with allegations that a famous male opera singer had sexually harassed them. By mid-September, the number had grown to twenty women, including opera singers, dancers, and others. The Associated Press (AP) reported that the singer’s alleged harassment “was an open secret,” and that “young women were left to fend for themselves in the workplace.” In late September, the singer announced that he was withdrawing from an upcoming production of Verdi’s “Macbeth” at New York City’s Metropolitan Opera (the “Met”).

Employment laws all over the country prohibit discrimination on the basis of sex, and include sexual harassment in this category of discrimination. At the federal level, Title VII of the Civil Rights Act of 1964 prohibits multiple forms of sexual harassment. One form, known as hostile work environment, occurs when “unwelcome…conduct of a sexual nature…creat[es] an intimidating, hostile, or offensive working environment.” 29 C.F.R. § 1604.11(a)(3). An employer is typically liable for hostile work environment when the perpetrator is a manager or supervisor. If the unwelcome sexual conduct comes from a co-worker, customer, client, or other individual in the workplace, an employer may be held liable if they knew about the conduct and failed to take reasonable actions to prevent it.

The allegations against the opera singer are reminiscent in some ways of the allegations against the Hollywood film producer that launched the #MeToo movement. The producer’s behavior was also described as an “open secret.” Aspiring actresses were reportedly warned about him and advised about ways to avoid his advances. At the same time, the perception was often that acceding to requests—or demands—for sexual activity were a requirement for entry into Hollywood. This is how the term “casting couch” came about.

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