Articles Posted in Sexual Harassment

The New York State Legislature passed a bill on June 19, 2019, A8421/S6577, that makes multiple changes to how the New York State Human Rights Law (NYSHRL) handles claims involving sexual harassment and other alleged unlawful employment practices. Section 2 of the bill adds a new provision to the NYSHRL that would effectively eliminate an affirmative defense available to employers, first under federal law and then under New York law, that is quite familiar to New York City sexual harassment attorneys. Employers can avoid liability for hostile work environment when they can establish that the plaintiff did not utilize opportunities provided by the employer to prevent or rectify alleged harassment. It is known as the Faragher/Ellerth defense, after two U.S. Supreme Court decisions issued on the same day: Faragher v. Boca Raton, 524 U.S. 775 (1998); and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

A hostile work environment generally occurs, in violation of antidiscrimination law, when pervasive and unwelcome conduct of a sexual nature substantially interferes with an employee’s ability to perform their job duties. The Faragher/Ellerth defense allows an employer to raise an affirmative defense to liability that consists of two main elements: (1) the employer acted reasonably to prevent and/or remedy sexual harassment in the workplace; and (2) the employee unreasonably failed to make use of opportunities to prevent or address harassment. A third element, sometimes included in the defense, involves a lack of materially adverse action against the employee because of their complaint. If an employer can prove these two or three elements by a preponderance of evidence, they can avoid liability.

Both Faragher and Ellerth involved sexual harassment claims under Title VII of the Civil Rights Act of 1964. Courts have also applied the defense to claims under the NYSHRL. In 2009, a federal court in the Southern District of New York declined to apply the Faragher/Ellerth defense to a case brought under the New York City Human Rights Law (NYCHRL). It certified a question to the New York Court of Appeals, asking whether the Faragher/Ellerth defense was available in NYCHRL cases. New York’s highest court ruled in 2010 that the defense is not available, noting different wording in the NYCHRL compared to other statutes.
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Silvia Stanciu is an employment litigation attorney at Phillips & Associates. Recently, Super Lawyers, an attorney rating service that names top practitioners in each state in numerous practice areas, named Ms. Stanciu a Rising Star in New York. Additionally, Super Lawyers asked Ms. Stanciu to address whether a person working in New York can sue his or her employer for sexual harassment by a coworker.

What is Considered Sexual Harassment?

Ms. Stanciu advised that any unwelcome behavior or comments of a sexual nature in the workplace may constitute sexual harassment. Typically, sexual harassment is quid pro quo or creates a hostile work environment. Quid pro quo harassment is transactional. In other words, the harasser pressures his or her victim into engaging in sexual conduct in exchange for a raise or promotion. Thus, the victim’s employment status is affected by his or her willingness to submit to sexual activity with a coworker.

Conversely, Ms. Stanciu explained, sexual harassment creates a hostile work environment when unwelcome sexual conduct or comments inhibits a person’s ability to do his or her job.  There are numerous laws that allow people to pursue claims against an employer due to a hostile work environment. Under the federal statute, the victim must show that the harassing behavior is pervasive or severe in order to prove it created a hostile work environment. Common examples of conduct that constitutes sexual harassment include sexual texts, emails, and comments, viewing or sharing pornography, and remarks regarding a person’s appearance or body.

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Erica Shnayder is an employment discrimination litigation attorney at Phillips & Associates. Ms. Shnayder focuses her practice on assisting individuals in protecting their rights in the workplace. Due to her tireless advocacy, Super Lawyers, a service that names top practitioners in each state in multiple practice areas, recently named Ms. Shnayder a Rising Star in the field of employment litigation. Super Lawyers routinely asks knowledgeable attorneys to address pressing issues in their fields. Super Lawyers recently asked Ms. Shnayder responded to answer whether a New York employee can sue his or her employer for sexual harassment.

How Victims of Sexual Harassment Can Protect Their Rights

Ms. Shnayder stated that while people who work in New York have the right to pursue sexual harassment claims against their employers, there are steps they must take to preserve their rights. First, it is essential for anyone alleging he or she was the victim of sexual harassment to prove that the offensive conduct was unwelcome. In many cases, however, the harasser will attempt to argue that he or she was unaware that his or her sexual remarks or conduct was unwanted. Thus, if you are the victim of sexual harassment in the workplace, confronting your harasser and advising him or her in clear terms that his or her conduct is uninvited and inappropriate can help to establish liability going forward. Ms. Shnayder advised, however, that you should not confront your harasser if you cannot do so safely.

Filing a Claim with the EEOC

Ms. Shnayder stated that if you are unable to confront your harasser or if the sexual harassment continues after you confront your harasser you should notify your supervisor or other upper-level management, or your company’s human resources department of the harassment. Additionally, if your company has defined procedures as to how sexual harassment claims should be reported and handled, you should follow the procedure. If reporting the sexual harassment within your company fails to halt the harassment, you can then file a claim with the Equal Employment Opportunity Commission (EEOC), which is a federal agency that enforces civil rights laws, which includes anti-harassment laws, in places of work throughout the country.

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Brittany Stevens is an employment litigation attorney at Phillips & Associates who handles a variety of cases, including sexual harassment claims.  Ms. Stevens was recently identified as a Rising Star by Super Lawyers, a service that names the top attorneys in various practice areas in each state. Additionally, Ms. Stevens recently advised Super Lawyers as to what steps a person facing sexual harassment from his or her boss should take.

Sexual Harassment Defined

Sexual harassment is any conduct or behavior of a sexual nature that is unwelcome and that creates a hostile work environment or negatively affects a person’s employment. Sexual harassment can affect employees of every status, regardless of their age, race, gender, or sexual orientation.  Additionally, sexual harassment is considered discrimination. Thus, it is prohibited under local, state, and federal anti-discrimination laws.

Ms. Stevens stated that there are numerous types of conduct that may be considered sexual harassment, including your supervisor or boss touching you without your permission, sending you texts, images, or emails of a sexual nature, or requesting sexual favors.  Moreover, unwelcome remarks regarding your appearance or body, inquiries into your sexual history, and viewing pornographic materials at work may also constitute sexual harassment. Additionally, if you are denied a promotion or raise because you refused your boss’s sexual advances, it may also constitute sexual harassment.

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An important limitation on employees’ rights under various antidiscrimination statutes is how each statute defines “employer.” Most laws set a minimum threshold of number of employees. Employers with fewer employees than that number are not considered “employers” within the meaning of that statute. In practice, this means that employees of small employers are not eligible for those laws’ protection against workplace discrimination, sexual harassment, and other unlawful practices. A new law passed by the New York Legislature, which the Governor is expected to sign, will expand the coverage of the New York State Human Rights Law (NYSHRL) to almost all employers in the state. The Legislature previously amended the NYSHRL to eliminate the minimum employee count for claims involving alleged sexual harassment. The new bill, A8421/S6577, as amended by S6594, makes the full range of the NYSHRL’s provisions applicable to employers of all sizes.

Title VII of the Civil Rights Act of 1964 defines an “employer” as a person who employs at least fifteen people for at least twenty weeks in the current, or the most recent, calendar year. 42 U.S.C. § 2000e(b). The federal government, its agencies, and any corporation wholly-owned by the federal government are not considered “employers” under Title VII. Indian tribes and the government of the District of Columbia are also exempt from Title VII’s definition.

The New York City Human Rights Law (NYCHRL) defines an “employer” as any person with four or more employees. N.Y.C. Admin. Code § 8-102. Much like the NYSHRL prior to the new amendments, the statute makes an exception in cases involving alleged sexual harassment. The NYCHRL also provides that individuals who are employed as independent contractors count towards the employer’s employee count, as long as they do not employ anyone themselves.
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Anyone who works in the State of New York is protected against sexual harassment and discrimination in the workplace by multiple laws, including the New York State Human Rights Law (NYSHRL). While the NYSHRL already provided greater protection against discrimination than the federal laws, recently passed amendments and proposed amendments that are pending approval vastly enlarged employees’ defenses against discrimination and harassment and expanded the liability imposed on employers. If you live in New York and suffered discrimination or sexual harassment at work, it is essential to meet with a trusted New York employment litigation attorney to discuss your prospective claims. At Phillips & Associates, our knowledgeable New York employment litigation attorneys are dedicated to assisting individuals who suffered harm due to sexual harassment or discrimination in the workplace in the pursuit of damages in New York and throughout the Tri-State area.

2018 Changes to the NYHRL

The recent changes made to the NYSHRL provided greater protection for employees and certain non-employees and imposed greater liability on employers. The changes require employers to develop and distribute written anti-harassment policies and conduct annual mandatory programs to prevent sexual harassment. Additionally, protection from sexual harassment is expanded from employees only to consultants, contractors, vendors, and other individuals working for an employer under the terms of a contract. An employer can be held accountable for the sexual harassment of these individuals if the employer either knew or should have known of the harassment and failed to rectify the situation.

The changes also modified the terms employers are permitted to include in certain contracts. For example, employers are barred from including provisions in employment contracts that make it mandatory to arbitrate sexual harassment claims, if the provision states that the arbitrator’s findings will be final and binding. Further, an employer cannot insert a confidentiality clause in a settlement agreement for a sexual harassment claim, unless the employee specifically requests the inclusion of the clause in writing. Additionally, the employee must be granted twenty-one days to weigh the terms of a settlement agreement and must be allowed seven days after the execution of the agreement to retract the agreement. Continue reading

Multiple legal strategies are available to New York City employment discrimination attorneys who are planning to assert a claim for sexual harassment on a client’s behalf. Federal, state, and municipal law provide protection against a wide range of discriminatory workplace practices. State law includes provisions that specifically apply to domestic workers, and which outline various situations that may constitute unlawful sexual harassment. A lawsuit filed in a Manhattan federal court in April 2019 alleges sexual harassment and other claims against an individual who employed the plaintiff as an au pair for his son. The complaint cites provisions of state and federal law that apply to domestic workers.

While sexual harassment is deemed a type of sex discrimination in any workplace, the New York State Human Rights Law (NYSHRL) addresses it in more specific terms for domestic workers. The term “domestic worker” includes people employed in someone’s residence to perform housekeeping services; to care for a child or “a sick, convalescing or elderly person”; or for “other domestic service purpose[s].” N.Y. Exec. L. § 296-b(1), N.Y. Lab. L. § 2(16). The NYSHRL prohibits “unwelcome sexual advances,” “requests for sexual favors,” and other conduct in two scenarios:
1. When acquiescence “to such conduct is made…a term or condition of…employment,” or the employer bases employment-related decisions on how the individual responds to the conduct; or
2. When the conduct creates a hostile work environment that “unreasonably interfer[es] with…work performance.” N.Y. Exec. L. § 296-b(2)(a).
These are the same scenarios that constitute sexual harassment under federal and city law. The New York Legislature has taken the extra step of codifying these definitions, as they pertain to domestic workers, in the NYSHRL.

According to her complaint, the plaintiff was nineteen years old when the defendant hired her to work in his home as an au pair for his twelve-year-old son, and to perform other jobs around the house. She notes that the defendant was fifty-seven years old at that time. She also notes the difference in size between them, with the defendant allegedly outweighing her by about eighty pounds and standing more than seven inches taller.
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New York has enacted several laws last year that were intended to help individuals who have experienced workplace sexual harassment. While those laws, which require training and other measures, may represent progress in terms of preventing future sexual harassment from occurring, critics have argued that they do little to help people who already have potential claims. In order to obtain relief in court, claimants typically must establish that the alleged harassment met a “severe or pervasive” standard established by the U.S. Supreme Court more than three decades ago. New York City discrimination attorneys are familiar with how difficult this standard can be to meet. This might no longer be the case, however, for claims under state law in New York. The state legislature passed a bill on June 19, 2019 that amends the New York State Human Rights Law (NYSHRL) to address sexual harassment specifically. Since the governor has also called for changes to sexual harassment law as part of his 2019 agenda, he has indicated that he will sign the bill.

The NYSHRL, Title VII of the Civil Rights Act of 1964, and other employment discrimination statutes recognize sexual harassment as a form of unlawful sex or gender discrimination. The U.S. Supreme Court made this finding for the first time in a 1986 decision, Meritor Savings Bank v. Vinson. The court ruled that, in order to sustain a claim for sexual harassment, a plaintiff must demonstrate that the conduct was so “severe or pervasive” that it “alter[ed] the conditions of…employment and create[d] an abusive working environment.” The New York Court of Appeals has adopted a comparable standard for harassment claims, citing Meritor and a related case from 1993, Harris v. Forklift Systems.

Critics of current New York law regarding sexual harassment—prior to the passage of the bill mentioned earlier—note that the “severe or pervasive” standard has led to court rulings dismissing many claims that seem to go far beyond any acceptable standard of conduct in the workplace. The Meritor case, according to the Supreme Court, involved “not only pervasive harassment but also criminal conduct of the most serious nature.” The ruling did not necessarily provide a useful guide for situations that were, relatively speaking, less appalling.
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The plaintiffs in a New York City sexual harassment lawsuit, which gained prominence in large part because of the #MeToo movement, recently filed affidavits containing additional allegations of harassment by the defendant against themselves and others. The affidavits are a response to a motion to dismiss filed by the defendant, a television host who lost his show after multiple women accused him of sexual harassment in late 2017. The lawsuit, filed in May 2018 in state court in Manhattan, alleges violations of the New York City Human Rights Law (NYCHRL). It names the host and the television network as defendants. The plaintiffs settled with the network in late 2018. The defendant host moved to dismiss the lawsuit in September 2018, claiming that the plaintiffs failed to state “valid causes of action” for their claims of sex discrimination, retaliation, and aiding and abetting.

The NYCHRL prohibits discrimination on the basis of numerous factors, including gender. Court decisions have recognized sexual harassment as gender discrimination in violation of this and similar statutes. Unlawful sexual harassment includes scenarios in which an employer creates or allows a “hostile work environment” consisting of unwelcome and pervasive sexual conduct, ranging from jokes or remarks to overtures or contact. It also includes “quid pro quo” situations in which acceding to demands for some form of sexual activity is a condition of employment. Retaliation for opposing or reporting suspected violations is itself an unlawful employment practice under the NYCHRL.

According to their complaint, the three plaintiffs were “all in their low 20s” when they worked for the defendant host, who was “in his mid-70s.” They began working for the network during a span of time from late 2015 to early 2017, and they allegedly experienced sexual harassment by the host during 2017. They allege that the host had a history of sexual harassment complaints going back at least as far as the 1980s, and that the network knew about this but “failed to take any remedial action for decades.”

New York City has taken many actions to combat discrimination and harassment in the workplace. These actions are not limited to legislation, such as the New York City Human Rights Law (NYCHRL), or investigations by the city’s Commissioner on Human Rights (CHR). In 2018, the CHR named Brooklyn-based street artist Tatyana Fazlalizadeh as its first Public Artist in Residence (PAIR). The program partners city agencies with artists “to address pressing civic issues through creative practice.” Fazlalizadeh unveiled a mural, entitled Respecting Black Women and Girls in St. Albans, in Daniel M. O’Connell Playground in Queens on April 12, 2019. The mural addresses experiences of “the daily indignities of anti-Black racism and sexism.”

New York City has officially declared, through the NYCHRL, that “bias-related violence or harassment…threaten the rights and proper privileges of [the city’s] inhabitants.” N.Y.C. Admin. Code § 8-101. The NYCHRL further states “that gender-based harassment threatens the terms, conditions and privileges of employment.” Id. In most situations, the NYCHRL only applies to employers with four or more employers, but any employer, regardless of size, could be liable for gender-based harassment. See id. at § 8-102.

The NYCHRL prohibits employment discrimination on the basis of race, gender, and multiple other factors. Id. at § 8-107(1)(a). “Discrimination” in this context can include workplace harassment. The statute also prohibits any “person,” which may include both individuals and businesses, from engaging in “discriminatory harassment” based on any protected category. This is broadly defined as knowingly using or threatening force to intimidate a person or interfere with their exercise of any legal right or privilege. Id. at § 8-603.
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