Articles Posted in Sexual Harassment

pensionNew York employment discrimination laws (as well as those around the country) tend to focus on the actions of individual managers, supervisors, or others; or on individual discriminatory policies or practices by employers. This approach is useful and necessary for obtaining justice for individual employees who have endured sexual harassment. It is proving, however, to be insufficient for addressing broader systemic problems that enable and contribute to sexual harassment and employment discrimination in the first place. Liability for damages in a sexual harassment lawsuit might not provide incentive for widespread reforms in companies with vast resources. Earlier this year, the State of New York tried a different approach. Instead of acting in its capacity as an enforcer of employment discrimination laws, it acted in its capacity as a corporate shareholder, alleging that a former CEO accused of sexual misconduct breached his fiduciary duties. New York City’s public pension funds later joined the lawsuit alongside the state funds. DiNapoli et al v. Wynn et al, No. A-18-770013-B, verif. am. complaint (Nev. Dist. Ct., Clark Cty., Mar. 23, 2018).

Under employment statutes like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL), unlawful discrimination on the basis of sex includes sexual harassment in two broad categories. Quid pro quo sexual harassment consists of demands for sexual activity in some form as a condition of obtaining or maintaining employment. Hostile work environment involves unwelcome sexual conduct, ranging from sexual jokes or remarks to outright sexual contact or assault, that is so pervasive that it interferes with an employee’s ability to do their job. These laws allow employees to file complaints, followed by lawsuits, seeking a variety of damages.

Lawsuits for employment discrimination can lead to changes within a company, such as when a public agency like the Equal Employment Opportunity Commission requires new company policies, subject to monitoring and review, as part of a settlement. Unlike this type of lawsuit, which imposes change from the outside, shareholder derivative suits are brought by corporate insiders as a means of enforcing a corporation’s rights or protecting its interests. See N.Y. Bus. Corp. L. § 626. A lawsuit brought under Title VII or the NYCHRL typically casts the employer on the side of the alleged harasser, seeking to hold the company liable for the actions of its agent. A shareholder derivative suit arguably allows a company to distance itself from the alleged acts of individuals. It is no substitute for a lawsuit that allows an aggrieved employee to recover damages directly, but it could be a useful method of demonstrating that corporations will not tolerate sexual harassment among their executives.
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metoo campaignFor the past year, the #MeToo movement has sought to shine a light on workplace sexual harassment. It has shown that, despite laws like Title VII of the Civil Rights Act of 1964, sexual harassment in New York City and across the country remains a major problem. While lawmakers and legal advocates examine the laws addressing sexual harassment, leaders in various industries are exploring ways to address the issue before the courts must get involved. The Producers Guild of America (PGA), a trade association representing film and television producers, issued new guidelines on sexual harassment in January 2018. The guidelines do not have the force of law, but they represent best practices recommended for both PGA members and others. The PGA also announced that Wonder Woman 1984, the sequel to the 2017 film Wonder Woman, would be the first production to adopt the new guidelines. If you have questions about how you’ve been treated at your job, speak to a New York sexual harassment attorney.

Experience unfortunately indicates that existing antidiscrimination statutes can only provide so much protection against sexual harassment. Title VII prohibits sex discrimination and sexual harassment in employment, but the legal definition of “employment” can exclude a wide range of people and jobs. The entertainment industry, where #MeToo began, offers an example of this problem. Many of the alleged acts of sexual harassment did not involve a specific job, such as a role in a film. Instead they were often presented as a way for individuals, usually actresses but also actors, to “pay their dues” in Hollywood.

The PGA’s Anti-Sexual Harassment Guidelines, first published on January 19, 2018, are intended to help movie and television producers respond to incidents of sexual harassment, and prevent sexual harassment from occurring in the first place. They provide definitions of the two main forms of sexual harassment recognized by law as unlawful sex discrimination: quid pro quo harassment and hostile work environment. The guidelines instruct producers, “first and foremost,” to comply with all relevant state and federal laws. From there, they recommend “in-person anti-sexual harassment (ASH) training” for all cast and crew members, prior to the start of production, that focuses on “a culture of respect that starts at the top.” Producers should provide clear systems for reporting alleged harassment, investigate all claims, and prevent retaliation.

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workplace harassmentWe have learned much in the last year about not only the extent of sexual harassment nationwide, but also people’s willingness to push back against workplace cultures that allow this sort of behavior to persist. The government is no exception, with people alleging numerous instances of sexual harassment in government agencies, legislative offices, and courts. Late last year, U.S. Supreme Court Chief Justice John Roberts acknowledged that sexual harassment has been a problem in the federal court system for some time. He joined other judges who have called for greater efforts to address New York sexual harassment, both in Manhattan and around the country. In June 2018, a working group formed to review the issue made recommendations for sweeping changes to the federal judiciary’s employment practices.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, which includes sexual harassment in various forms. The statute’s definition of an employer, however, excludes “the United States” and any “corporation wholly owned by the Government of the United States.” 42 U.S.C. § 2000e(b)(1). Title VII’s protections are only available to federal judiciary employees who “hav[e] positions in the competitive service,” which generally consists of “positions to which appointments are made by nomination for confirmation by the Senate.” 42 U.S.C. § 2000e-16(a), 5 U.S.C. § 2102(b).

This leaves many employees without recourse under Title VII. The Judicial Conference of the United States (JCUS) has adopted a Model Equal Employment Opportunity Plan. Complaints against judges might also be possible under the Judicial Conduct and Disability Act (JCDA) of 1980, which allows complaints “alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.” 28 U.S.C. § 351(a).
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sexual harassmentAs employers contend with issues of sexual harassment and other forms of New York sex discrimination in the workplace, parts of the federal government seem to be recognizing their own shortcomings in these areas. Antidiscrimination statutes like Title VII of the Civil Rights Act of 1964 apply to private employers all over the country, while New York City’s antidiscrimination statutes provide additional protections to workers within the city. Federal agencies, in their capacity as employers, are generally bound by Title VII, amd they are also subject to internal watchdogs established by the Inspector General Act (IGA) of 1978. Last year, the Office of the Inspector General (OIG) in the U.S. Department of Justice (DOJ) issued a report harshly criticizing how the department has handled many cases involving alleged sexual harassment.

Under federal law, sexual harassment constitutes sex discrimination in violation of Title VII. Employees of private businesses must file a complaint with the Equal Employment Opportunity Commission (EEOC), an independent agency in the Executive Branch of the federal government, in order to assert a claim under Title VII. Employees of certain federal agencies can report sexual harassment and other alleged violations to their agency’s OIG, which has authority under §§ 2 and 6 of the IGA to investigate complaints and refer matters for further enforcement action.

Section 12(2) of the IGA identifies the federal agencies that must establish and maintain OIGs. The list includes the DOJ and all other Cabinet departments, as well as agencies like “the Environmental Protection Agency, the Federal Emergency Management Agency, [and] the General Services Administration.” Employees of these agencies are authorized by § 7(a) to make “complaints [to the OIG]…concerning the possible existence of an activity constituting a violation of law, rules, or regulations.” Section 7(b) requires OIGs to maintain the confidentiality of complainants whenever possible, and § 7(c) prohibits agency supervisors from retaliating against employees who make complaints.
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sexual harassmentIn New York City, sexual harassment is viewed as unlawful sex discrimination under federal, state, and municipal law. The past year has seen numerous instances of workplace sexual harassment finally seeing some measure of attention and, in some cases, justice. For all the progress that we have seen recently, it is worth remembering that nationwide recognition of sexual harassment as a violation of antidiscrimination laws first occurred just over thirty years ago, and that the term “sexual harassment” itself is barely forty years old. A group of women in New York coined the term in 1975, in support of a woman who quit her job because of a male supervisor’s alleged unwelcome sexual advances.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of several factors, including sex. A series of court decisions have expanded the definition of “discrimination on the basis of sex” to include two sexual harassment scenarios. First, “quid pro quo sexual harassment” involves demands for some sort of sexual activity by a supervisor or manager, either as a condition for obtaining employment or as a condition for continued employment or employment benefits. Second, a “hostile work environment” occurs when a worker is subjected to unwanted sexual conduct, ranging from jokes or comments to outright assault, which interferes with their ability to perform their job duties. It took years of advocacy and litigation to get legal recognition of these claims.

Before sexual harassment had a name, women had no clear way to push back against such behavior by bosses and coworkers. The television show Mad Men might have been a “historical drama,” but the history it portrayed is very recent. In 1975, a woman quit her job at Cornell University after enduring years of unwanted advances from her boss, including alleged acts that might be deemed sexual assault today. She filed for unemployment benefits, but was denied after the university asserted that she quit for “personal reasons.” A group of women employed by the university rallied to her defense, founding a group called Working Women United. The group held meetings at which women shared their workplace experiences. The term “sexual harassment” appeared out of these meetings.

waitressWorkers in the restaurant industry, particularly servers, depend on tips for their income. Under both state and federal law, employers are not required to pay the full minimum wage amount to employees who customarily receive tips. Instead, they pay a “tip credit” that, when combined with a worker’s tip income, totals at least the minimum wage. This can put restaurant workers in a vulnerable position. A restaurant server may worry about lost income if they object to harassment by a customer. A report published by Mic in late 2017 examined reports of sexual harassment by tipped restaurant employees. It found that restaurant workers have one of the highest rates of reported sexual harassment.

The federal Fair Labor Standards Act (FLSA) defines a “tipped employee” as one who “customarily and regularly receives more than $30 a month in tips.” 29 U.S.C. § 203(t). Tipped employees’ compensation is a combination of wages paid by their employer and tips paid by customers. An employer of a tipped employee must pay a minimum wage, or tip credit, of $2.13 per hour, plus any additional amount needed to raise the employee’s total compensation to the minimum wage of $7.25 per hour. Id. at §§ 203(m), 206(a)(1)(C); 29 C.F.R. § 531.59. New York City mandates higher minimum wages than the FLSA. N.Y. Lab. L. § 652(1)(a). For tipped employees in New York City restaurants, the minimum wage as of December 31, 2017 is $8.00 per hour for employers with ten or fewer employees, and $8.65 per hour for those with eleven or more employees. The tip credit is $4.00 and $4.35, respectively.

Laws at the federal, state, and city level in New York City prohibit employment discrimination on the basis of sex. This includes sexual harassment in situations where unwelcome and pervasive sexual conduct creates a hostile work environment. A claim could arise from a single incident, if it is severe enough, but most hostile work environment claims are based on an ongoing pattern of behavior. The conduct that gives rise to a hostile work environment could come from one or more supervisors, coworkers, or customers. If, as is the case in the Mic report mentioned above, customers are responsible for the alleged hostile work environment, the employer must have known about the conduct and failed to act in order to be liable.
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As the nation pays greater attention to sexual harassment in the workplace, hotel maintenance employees are finally gaining a platform to talk about what they have endured. Several recent high-profile lawsuits have sought to address the alleged sexual harassment of housekeeping workers by hotel managers and other employees. Many housekeepers face another problem, however—sexual harassment by hotel guests. Employers may be held liable for acts perpetrated by customers, but New York City sexual harassment plaintiffs must prove that the employer knew or should have known about the harassment and failed to act. This can be particularly difficult in the context of hotel maintenance, in which employees may find themselves alone with a guest in the guest’s room. Measures like panic buttons may help address the issue, but the sheer scope of the problem suggests that much work is left to be done.Legal News Gavel

Sexual harassment is considered a form of sex discrimination under statutes like the New York City Human Rights Law and Title VII of the Civil Rights Act of 1964. One of the main forms of sexual harassment covered by these laws occurs when unwelcome sexual conduct creates a hostile work environment that interferes with an employee’s ability to do their job. In order to assert a claim for a hostile work environment created by one or more customers, a plaintiff must be able to “show that the employer either knew (actual notice) or should have known (constructive notice) of the harassment and failed to take immediate and appropriate corrective action.” Watson v. Blue Circle, Inc., 324 F. 3d 1252, 1259 (11th Cir. 2003).

The hospitality industry presents additional challenges for plaintiffs. In a practical sense, identifying guests who sexually harass hotel employees can be difficult because of “plausible deniability”—it is usually the employee’s word against the guest’s. This makes investigations difficult and puts a hotel in a position of choosing between an employee and a paying customer. In a legal sense, hotels and other lodging-related businesses have a particularly high duty of care toward their customers. “A hotel…has a duty to use due care to protect its guests against foreseeable hazards, including criminal acts.” Shadday v. Omni Hotels Mgt. Corp., 477 F. 3d 511, 512 (7th Cir. 2007).

The past year has seen a significant increase in public and media attention to the issue of sexual harassment in the workplace. Allegations against major figures in politics, media, and other industries have led to what is known as the #MeToo movement, in which people who have remained silent about their experiences with alleged sexual harassment are finally speaking up. An increase in sexual harassment complaints, however, could lead to at least one potential area of concern—the workload and backlogs of the government agencies tasked with investigating employment discrimination complaints. New York City workers can file complaints with federal, state, or city authorities, but complainants in many parts of the country do not have as many options. The federal Equal Employment Opportunity Commission (EEOC) is responsible for investigating alleged discrimination in violation of Title VII of the Civil Rights Act of 1964, among other federal statutes. The agency has had a substantial backlog of cases for some time, but it remains to be seen whether the past year has added to their backlog of sexual harassment complaints.Legal News Gavel

Workers who have experienced New York sexual harassment may be able to bring claims under three statutes:  Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. Each of these laws considers sexual harassment to be a form of unlawful discrimination on the basis of sex. Agencies at the city and state levels handle complaints under city and state laws, respectively. The EEOC deals with complaints that cite Title VII or another federal anti-discrimination statute.

In order to file a lawsuit under Title VII, a worker must first file a complaint with the EEOC, known as a “charge.” The EEOC will investigate the charge to determine if it has merit. It will pursue a small number of cases on behalf of the complainants. In most cases, however, it will either rule that the charge lacks merit, or it will issue a “right to sue” letter to the complainant. This enables the complainant to file suit in federal court.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. Court decisions have expanded Title VII’s definition of sex discrimination to include sexual harassment. Some of these decisions are now leading courts around the country to expand Title VII protection to discrimination on the basis of sexual orientation and gender identity. New York City discrimination law, unlike federal law, expressly includes both of these as protected categories. Two Supreme Court decisions on sexual harassment have played a significant role in decisions relating to sexual orientation and gender identity discrimination. One decision, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), held that discrimination based on “sex stereotyping” violates Title VII. This year marks the 20th anniversary of the other decision, Oncale v. Sundowner Offshore Services, Inc. (“Oncale II”), 523 U.S. 75 (1998), which held that same-sex sexual harassment is also covered by Title VII.Legal News Gavel

The Supreme Court received the Oncale case from the Fifth Circuit Court of Appeals, which had ruled that Title VII does not apply to harassment between members of the same sex. Oncale v. Sundowner Offshore Services, Inc. (“Oncale I”), 83 F. 3d 118 (5th Cir. 1996). The Fifth Circuit held that it was bound by its own prior decision in Garcia v. Elf Atochem North America, 28 F.3d 446 (5th Cir. 1994). It noted, however, that other courts had reached different conclusions. A concurring opinion from a Second Circuit justice, for example, stated that “harassment is harassment regardless of whether it is caused by a member of the same or opposite sex.” Oncale I at 120 n. 3, quoting Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 148 (2d Cir.1993) (Van Graafeiland, C.J., concurring).

The plaintiff in Oncale was part of an eight-man crew on an oil platform in the Gulf of Mexico. At least three members of the crew, including “the crane operator, and…the driller, [who] had supervisory authority,…forcibly subjected [him] to sex-related, humiliating actions…in the presence of the rest of the crew.” Oncale II at 77. He eventually sued for sexual harassment under Title VII.

Legal News GavelEmployers often use training to address problems among employees, as well as to mitigate their own risk of liability for unlawful employment practices like sexual harassment. New York law, at both the city and state level, will soon require employers to provide sexual harassment training to its managers, supervisors, and employees. The Equal Employment Opportunity Commission (EEOC) also recommends that employers provide trainings, even though federal law does not require them. When settling lawsuits, the agency often requires employers to provide trainings as part of the settlement agreement. Whether sexual harassment trainings are actually effective at preventing future workplace harassment, however, is an unsettled question. In an article published last year in Scientific American, a group of researchers raise this question and explore where change is needed.

Under new laws that have not yet gone into effect, many employers in New York will be required to provide sexual harassment trainings to their employees, including supervisory and managerial employees. The New York Legislature, as part of a budget bill passed in April 2018, added a new section to the Labor Law that requires the state to create “a model sexual harassment prevention training program,” and requires employers to use this program or create their own that meets the same standards.

A new law passed by the New York City Council will require employers with at least fifteen employees to provide sexual harassment training, but it does not direct the city government to create a model program. The law provides a detailed list of topics the training must cover, including the unlawful status of sexual harassment, examples of conduct constituting sexual harassment, company policies regarding reporting and investigating alleged sexual harassment, and complaint processes through government agencies.
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