Articles Posted in Sexual Harassment

Since the fall of 2017, the national discourse has given considerable attention to the issue of sexual harassment in the workplace, perhaps more than it has ever received before. This is often referred to as the #MeToo movement. According to some news reports, it has left managers, supervisors, and executives in some industries uncertain about the future. In late 2018, Bloomberg reported that some Wall Street managers have adopted a new rule: “Avoid women at all costs.” Hyperbole aside, this reveals what could become a larger problem. In an effort to avoid what they perceive as risks for future sexual harassment claims, could employers perpetuate other forms of sex discrimination? One column describes this as a possible “unintended consequence” of #MeToo, as if women and their advocates somehow bear some share of responsibility. Other pieces take tones that range from scolding to mocking. For New York City sexual harassment attorneys, this is a very serious question.

Employment discrimination on the basis of sex is prohibited in New York City under three statutes: Title VII of the federal Civil Rights Act of 1964, the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL). An employer violates the law if they refuse to hire, refuse to promote, terminate, or otherwise discriminate against an individual based on their sex. These laws protect both men and women, although it is women who bear the brunt of sex discrimination in the workplace, both historically and currently. Provisions in the NYCHRL additionally protect transgender and non-binary workers against discrimination.

Sexual harassment constitutes sex discrimination under these statutes in two general scenarios: quid pro quo sexual harassment and hostile work environment. The U.S. Supreme Court first recognized sexual harassment as a form of sex discrimination under Title VII more than thirty years ago in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). It expanded this to include same-sex sexual harassment, e.g. male employees subjecting another male employee to a hostile work environment, twelve years later in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).
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A jury in a Manhattan federal court returned a verdict this summer in favor of a professor who formerly taught at a university in New York City, and awarded her $1.25 million in damages. The plaintiff alleged sex discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL). Ravina v. Columbia University, No. 1:16-cv-02137, 1st am. complaint (S.D.N.Y., Jul. 8, 2016). The verdict demonstrates how different claims under Title VII may operate independently of one another. The jury actually found in favor of the defendant on the claims involving sex discrimination and sexual harassment. It rendered a verdict in the plaintiff’s favor, however, on her retaliation claims. New York City sexual harassment attorneys often present harassment and retaliation claims side by side, but the two claims involve two different statutory provisions. To borrow a phrase from the political realm, if sexual harassment is the crime, retaliation is often the cover-up.

Discrimination in employment on the basis of sex is an “unlawful employment practice” under Title VII and the NYCHRL. 42 U.S.C. § 2000e-2(a)(1), N.Y.C. Admin. Code § 8-107(1)(a). Multiple court decisions have established that sexual harassment is a form of sex discrimination in two broad categories: when sexual activity in some form is made a condition of employment, and when pervasive and unwelcome sexual remarks or behavior create a hostile work environment. Both laws also state that an employer commits an unlawful employment practice when they discriminate against an employee because they have “opposed any [unlawful employment] practice,” made a complaint alleging an unlawful employment practice, or cooperated in an investigation of an alleged unlawful employment practice. 42 U.S.C. § 2000e-3(a), N.Y.C. Admin. Code § 8-107(7).

A plaintiff, generally speaking, has the burden of proof in a civil lawsuit. They must establish the defendant’s liability by a preponderance of the evidence. A plaintiff must demonstrate to the finder of fact—a judge or jury—that at least fifty-one percent of the evidence supports their allegations against the defendant. If the finder of fact concludes that the plaintiff has not met this burden of proof, they must render a verdict in the defendant’s favor. This does not necessarily mean that the plaintiff’s claims are false or have been disproven. It only means that the plaintiff did not produce sufficient evidence to convince the judge or jury.
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The theater offers actors, directors, producers, and others countless opportunities for artistic expression. Unfortunately, what might seem like bold artistic expression to a few people often looks like harassment to others. Even more unfortunately, the theater is prone to the same power dynamics and imbalances that New York City sexual harassment lawyers see in almost every type of workplace. For more than a year, the country’s attention has been focused on abuses of power in film, television, and other media—mostly but not exclusively men—resulting in sexual harassment and assault. The theater business is no different, but many theaters are now acknowledging the problem. In addition to removing individuals accused repeatedly of harassment, some theaters are working to change their cultures. A theater near New York City recently fired its longtime artistic director after multiple allegations sexual harassment, and then announced changes to its “big personality workplace culture.”

Laws like Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of numerous factors, including sex. Sexual harassment in the workplace constitutes unlawful employment discrimination when sexual activity is made a condition of employment, or when it creates a hostile work environment that prevents an individual from doing their job. These laws give aggrieved employees recourse in the court system, allowing them to recover monetary damages and other relief. These laws are not very effective, however, at changing the workplace cultures that allow sexual harassment to occur, or even flourish.

Discrimination lawsuits brought by agencies like the Equal Employment Opportunity Commission (EEOC) occasionally lead to changes in workplace culture. A settlement or judgment might require an employer to adopt policies and provide training regarding sexual harassment. The EEOC has the authority, and ostensibly has the resources, to monitor compliance with such provisions. The extent to which they are successful in changing workplace culture is a matter of debate. Real change, as the saying goes, must come from within.
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The performing arts, including music, theater, and dance, are among the most famous features of New York City. Sexual harassment is unfortunately still common for performers and workers, despite recent efforts to bring attention and consequences to those who perpetrate or enable this sort of conduct. Statutes like the New York City Human Rights Law (NYCHRL) view certain types of sexual harassment as unlawful discrimination in employment on the basis of sex. A recent lawsuit filed against the city’s largest ballet company demonstrates that laws like the NYCHRL are not the only tools available to New York City sexual harassment lawyers. A former student at the ballet’s dance school alleges that the ballet company negligently allowed an environment of sexual harassment in Waterbury v. N.Y.C. Ballet, Inc., et al, No. 158220/2018, am. complaint (N.Y. Sup. Ct., N.Y. Cty., Sep. 18, 2018).

Hostile work environment is one type of sexual harassment covered by the NYCHRL and other statutes. It occurs when unwelcome sexual remarks, jokes, or advances impede an individual’s ability to perform their job duties. If acts allegedly constituting a hostile work environment also threaten workplace safety, privacy, or other legal interests, a negligence claim may be possible. Negligence is based on common-law principles. A plaintiff must establish four elements: 1) the defendant owed a duty of care to the plaintiff or the general public; 2) the defendant breached that duty; 3) the breach was the cause-in-fact of the plaintiff’s injuries; and 4) the plaintiff suffered measurable, compensable damage. Businesses have a duty to provide a reasonably safe environment for customers, employees, and others who would ordinarily be expected to be present on their premises. Employers have a duty to provide reasonably safe work environments for their employees.

The plaintiff in Waterbury is a ballet dancer and a former student at the ballet company’s school. She alleges that the company maintains a “fraternity-like atmosphere” that “emboldens [it and its dancers] to disregard the law and violate the basic rights of women.” Waterbury, complaint at 2. She studied at the ballet company’s dance school, and entered into a dating relationship with a male dancer. Her complaint describes a wide range of alleged conduct by dancers and others in the ballet company, and alleges that the company either ignored or enabled the conduct “so long as the institution continued to sell tickets and was profitable.” Id. at 8.
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New York City is renowned for its theater scene. Broadway theaters offer some of the best and most well-regarded productions in the world. The various levels of “off-Broadway” theaters offer everything from the familiar to the avant-garde. Given what we know about other media industries, it should be no surprise that theater workers must also deal with sexual harassment. New York City’s theater scene has taken some steps to address the issue, but it remains a serious problem. Reports from earlier this year revealed allegations of sexual harassment and assault in a popular “immersive” theater production, where audience members may interact directly with performers, and a few have allegedly groped cast members. In order to address this sort of situation, New York City sexual harassment attorneys may not only have to identify the legal relationships between the various parties, but also the ways in which the nature of the production itself could put people at risk.

Under statutes like the New York City Human Rights Law, sexual harassment is an unlawful form of sex discrimination in two broad scenarios. Quid pro quo sexual harassment occurs when an individual with managerial or supervisory authority demands some sort of sexual activity in exchange for employment or various perks of employment. One example of this in the entertainment world is the “casting couch,” in which a producer or director will cast someone in their production in exchange for sexual activity.

The other legally-actionable form of sexual harassment occurs when a pattern of unwelcome sexual conduct creates a hostile work environment that inhibits the ability to do one’s job. The perpetrators of a hostile work environment do not have to be in a superior position to the complainant for a claim to be viable. They could be co-workers, customers, or audience members. The complainant must, however, be able to show that the employer knew about the harassment and failed to take reasonable steps to deal with it.
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Courts routinely encourage litigants to use alternative dispute resolution (ADR). These methods offer some advantages, such as avoidance of long backlogs in the court system, but some common features of ADR tend to favor employers over employees. ADR procedures, for example, are private, and often include nondisclosure agreements that prevent New York City sexual harassment attorneys or their clients from discussing or disclosing details of their cases. This can put other employees at a disadvantage, as it keeps important information about their workplace secret. Recent amendments to New York state law seek to prohibit mandatory arbitration of employment disputes involving sexual harassment claims. That law, however, could be subject to a challenge under federal law, which is far more amenable to mandatory arbitration. It is therefore welcome news that several tech companies, many of which employ thousands of people in New York, are voluntarily dropping mandatory arbitration of sexual harassment claims from their employment agreements.

Sexual harassment in the workplace is considered a form of unlawful sex discrimination under the New York State Human Rights Law (NYSHRL), as well as federal and New York City law. Employment contracts requiring arbitration of disputes effectively bar employees from taking their claims to court. An arbitration proceeding resembles a trial in many ways, but various features—from the choice of arbitrator to the cost of the process—are often favorable to employers. The use of nondisclosure clauses also often benefits employers more than employees. If the results of an arbitration proceeding are kept confidential, it could mean that important information about an employer is not available to employees and prospective employees.

The Federal Arbitration Act (FAA) of 1925 establishes a strong preference for arbitration of disputes, and agreements among parties to submit disputes to arbitration. The statute declares that an agreement to arbitrate is “valid, irrevocable, and enforceable” as long as it comports with the general laws governing contracts. 9 U.S.C. § 2. Courts must stay proceedings brought by a party to an arbitration agreement upon the request of any other party to that agreement. The statute directs courts to confirm arbitration awards as court orders, except in very limited circumstances. Courts may only vacate an arbitration award if a party can show fraud, coercion, corruption, or other misconduct by an arbitrator. They may only modify an award upon a clear showing of error.
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“Boys will be boys” is a phrase we have heard many times over the past year, as this country reckons with systems that have allowed sexual harassment to go unremedied at best, and to flourish at worst. New York City sexual harassment lawyers and their clients are far too familiar with the sort of mindset embodied by phrases like “boys will be boys.” For example, conduct that creates a hostile working environment, and which therefore violates laws like the New York City Human Rights Law (NYCHRL), is written off as “just a joke.” While our job is to deal with sexual harassment through the court system under local, state, and federal law, in reality it is only one part of a much larger problem. Addressing the underlying attitudes that routinely lead to sexual harassment may be possible through sex education programs in schools. Advocates in New York and around the country, both young and old, are advocating to add issues like consent to these programs.

Workplace sexual harassment constitutes sex discrimination, which violates the NYCHRL, Title VII of the Civil Rights Act of 1964, and other laws. The concept of “consent” is often mentioned in the context of criminal sexual misconduct, but it also plays a role in employment law. One common form of sexual harassment is the “hostile work environment,” which occurs when unwanted sexual remarks, jokes, or other conduct renders the workplace hostile and interferes with an individual’s ability to do their job. Another involves demands for sexual conduct as a condition of employment. A key element of both is that the underlying conduct or demand is “unwelcome.” See e.g. 29 C.F.R. § 1604.11.

The topic of sex education in schools is highly controversial, and different states and local jurisdictions have enacted widely varying laws regarding what children should be taught and when. According to the National Conference of State Legislatures, twenty-four states and the District of Columbia require some form of sex education as part of school curricula. Twenty states have laws that specifically require that the information provided to students be medically accurate. In thirty-five states and D.C., parents may choose to withhold their children from sex education classes. New York is not currently among the states that mandate sex education. New York City has its own law, albeit a poorly-enforced one.
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The holiday season is upon us, which means office holiday parties will be happening soon. Although the start of the #MeToo movement shortly before last year’s holiday season might have led to fewer—or at least less extravagant—holiday parties, the holiday season always seems to make some people think the usual rules do not apply. As New York City sexual harassment lawyers, please let us assure you that the rules do still apply. Here is Phillips & Associates’ guide to throwing a holiday party that everybody in the office can enjoy.

First, let us speak a bit about what constitutes sexual harassment in the workplace—which includes office parties. Sexual harassment is a form of sex discrimination under statutes like the New York City Human Rights Law in two general scenarios:

  1. Quid pro quo sexual harassment occurs when sexual activity, from “dirty talk” to actual sexual contact, is made a condition of employment. This usually involves a supervisor, manager, or executive making demands of an employee in a subordinate position. It can be an outright demand, e.g. “do this if you want a good shift schedule.” It can also be more subtle, such as when the circumstances indicate that rejecting a supervisor’s advances will be damaging to one’s job.
  2. A hostile work environment occurs when an employee is subjected to unwanted and pervasive sexual remarks, jokes, overtures, or advances, to the extent that it interferes with their ability to do their job. This type of sexual harassment can occur between co-workers of equal rank within a company, but then the employer is only liable if they knew about the harassment and failed to act. Many hostile work environment claims involve an ongoing pattern of offensive behavior by one or more individuals. A single incident can also support a hostile work environment claim if it is severe enough.

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Over three thousand people gathered in New York City on November 1, 2018 as part of a worldwide “walkout” by Google employees. The walkout’s purpose was to protest the company’s reported handling of sexual harassment and misconduct allegations against a former executive. About twenty thousand employees worldwide participated in the walkout. The company later announced changes to its procedures in sexual harassment cases. In situations like this, where employees take direct action to demand change from employers, New York City sexual harassment attorneys should be aware of workers’ legal rights, and the extent of protection for workers who walk off the job.

Statutes like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL) prohibit employers from discriminating against workers on the basis of sex. This includes sexual harassment in various scenarios. Before aggrieved employees may go to court to sue for damages, they must make use of administrative procedures within the employer, if any, and within a government agency like the Equal Employment Opportunity Commission (EEOC). Most antidiscrimination statutes do not require employers to maintain any specific policies or practices regarding the investigation of sexual harassment allegations. The NYCHRL is an exceptions thanks to recent amendments. Employers are required, however, to apply whatever policies and practices they do maintain fairly and consistently.

The walkout by Google employees was not a “strike” in the common sense of the term, since it did not arise from a collective bargaining disagreement between the employer and a union. It still arguably falls under the types of activities protected by the National Labor Relations Act (NLRA). In addition to activities that are directly related to organizing for collective bargaining, the NLRA protects workers’ rights “to engage in other concerted activities for the purpose of…mutual aid or protection.” 29 U.S.C. § 157. Employers may not “interfere with [or] restrain…employees in the exercise” of these rights. Id. at § 158(a)(1).
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The fashion industry in New York City and elsewhere around the country and the world has produced numerous accounts of the sexual harassment of models. Alleged New York sexual harassment incidents have involved photographers during shoots, or a wide range of people backstage during fashion shows, where models are often expected to change clothes without much privacy. Much of the attention has focused on female models. An article published earlier this year in the New York Times details male models’ allegations of sexual harassment. Men experience sexual harassment at lower overall rates than women, with the Equal Employment Opportunity Commission reporting that seventeen percent of the complaints it receives are from men. The modeling business presents an unusual situation, however, since it is one of the very few jobs where women routinely—and often significantly—earn more than men. Both female and male models have alleged various types of sexual harassment, including “casting couch” situations where they are told they must acquiesce to demands for sexual activity in order to advance in their careers.

Federal, state, and municipal laws in New York City prohibit sexual harassment, classifying it as a form of sex discrimination. Unlawful sexual harassment may take two broad forms. The “casting couch” scenario described above is an example of “quid pro quo sexual harassment,” where sexual activity of some sort is made a condition of obtaining employment, or of accessing various features and benefits of employment. The modeling business also presents scenarios that could constitute “hostile work environment.” This type of sexual harassment involves unwanted sexual behavior in the workplace, ranging from jokes or remarks to nonconsensual contact, which is pervasive enough to interfere with the complainant’s ability to work.

Models often exist somewhat outside of traditional employee/employer relationships, which can affect their ability to assert a claim under the law. They are represented by agencies, who enter into agreements with fashion brands and other companies. Those companies might be the ones to hire the photographer. According to the New York Times, the agencies and the brands point fingers at each other with regard to who is responsible for protecting models from sexual harassment and abuse at the hands of photographers and others. The photographers, the Times article states, “say they do what they do to get the best picture — which is what the clients want.”
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