Articles Posted in Sexual Harassment

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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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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