Articles Posted in Sexual Harassment

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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Employees in New York City who have experienced sexual harassment have several options for asserting claims and seeking damages. A New York City sexual harassment attorney with knowledge of the city’s legal system can help you determine the best route for your case. In 2015, the New York City Commission on Human Rights (CHR) ordered an employer to pay the maximum possible civil penalty allowed by the New York City Human Rights Law (NYCHRL)—$250,000—for the first time since the law’s enactment. A state court affirmed the order in Automatic Meter Reading Corp. v New York City (“AMRC”), 2019 NY Slip Op 50464(U) (N.Y. Sup. Ct., N.Y. Cty., Feb. 28, 2019).

Sexual harassment is considered a form of unlawful sex discrimination in two situations, known as quid pro quo sexual harassment and hostile work environment. The U.S. Supreme Court first recognized sexual harassment as a violation of federal antidiscrimination law in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The court held that the allegedly harassing conduct must be “severe or pervasive” enough to impact the claimant’s ability to perform their job. Id. at 67. State law in New York has adopted a similar standard.

New York City courts do not view the NYCHRL’s “standard for sexual harassment violations [as] a carbon copy of the federal and state standard.”, see also N.Y.C. Admin. Code § 8-130(a). A complainant asserting a claim under the NYCHRL does not have to prove harassment that meets the federal “severe or pervasive” standard. Instead, they need only prove that they were “treated less well than other employees” because of their gender, and that the allegedly harassing conduct was “more than non-actionable petty slights and minor inconveniences.”
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Workplace harassment is almost always a nuisance. It is not necessarily always illegal under laws like the New York City Human Rights Law (NYCHRL). Harassment only violates the law when it is based on a protected category like race or sex, and when it directly impacts a person’s employment or the quality of the work environment. When assessing whether harassment crosses the line between a nuisance and an unlawful employment practice, New York City discrimination attorneys must carefully examine the circumstances of each case.

What Is Harassment?

The Equal Employment Opportunity Commission (EEOC), which enforces federal antidiscrimination laws like Title VII of the Civil Rights Act of 1964, defines harassment as “unwelcome conduct that is based on” a protected category. It states that harassment based on one or more of these categories becomes unlawful in two situations:
1. Quid pro quo harassment: The complainant must “endur[e] the offensive conduct” as “a condition of continued employment”; or
2. Hostile work environment: The allegedly harassing conduct is so “severe or pervasive” that it “create[s] a work environment that a reasonable person would consider intimidating, hostile, or abusive.”

If the alleged harasser is a supervisor with authority over the complainant’s employment, the employer may be held liable even if management did not know about the conduct. See Vance v. Ball State University, 570 U.S. 421 (2013). If the alleged harasser is a co-worker, customer, or other individual, the complainant must demonstrate that the employer knew about the harassment and failed to remedy it.
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A budget bill passed by the New York State Legislature in 2018, S. 7507/A. 9507, added several protections against sexual harassment for workers throughout the state. Part KK, Subpart E of the bill required the state to produce a “a model sexual harassment prevention guidance document and sexual harassment prevention policy” and “a model sexual harassment prevention training program.” The state issued these documents in November 2018. The bill requires employers to adopt the state’s model policy and use its model training program, or to develop their own policies and programs that “equal or exceed the minimum standards” established by the state. New York City passed a law in 2018, Local Law 96, that also requires employers to provide sexual harassment training.

The New York State Human Rights Law (NYSHRL) prohibits discrimination in employment on the basis of sex, sexual orientation, and other factors. N.Y. Exec. L. § 296(1)(a). The New York City Human Rights Law (NYCHRL) contains similar prohibitions, as well as express prohibitions against discrimination on the basis of gender identity and gender expression. At the federal level, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, but does not specifically mention sexual orientation or gender identity or expression. Court decisions have held that sexual harassment constitutes sex discrimination under all of these statutes.

The state released a document entitled “Sexual Harassment Policy for All Employers in New York State” in November 2018. This satisfies the state’s obligation under Part KK, Subpart E of the budget bill. The model policy states that sexual harassment may violate the NYSHRL when it is based on an individual’s actual or perceived sex, sexual orientation, gender identity or expression. It provides procedures for reporting sexual harassment. It identifies supervisors’ responsibilities when a report is made, and outlines how investigations should proceed.
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Some defendants in New York City have responded to sexual harassment lawsuits not only by denying the plaintiff’s allegations, but also by counterclaiming for defamation. This is a common-law claim alleging that a false statement has caused a person financial harm. New York City sexual harassment attorneys are familiar with many ways people have tried to prevent victims of sexual harassment from telling their stories. In some situations, the purpose of a defamation lawsuit is to prevent a person from speaking out by confronting them with significant litigation costs. This is known as a “strategic lawsuit against public participation” (SLAPP). Many states have enacted “anti-SLAPP statutes” allow motions for early dismissal of frivolous suits. Some anti-SLAPP laws provide privilege against defamation claims for statements made in connection with legal claims. New York has an anti-SLAPP statute, but it is very limited in scope.

Sexual harassment is considered a type of unlawful sex or gender discrimination under New York City’s antidiscrimination laws, such as the New York City Law Against Discrimination and Title VII of the Civil Rights Act of 1964. In order to prevail on a claim, a plaintiff must publicly allege all of the facts that they contend constitute sexual harassment. Unless a court orders otherwise, these details become part of the public record.

A claim for defamation requires proof of four elements under New York law: (1) a false statement made to a third party; (2) a lack of authorization or privilege for the statement; (3) negligence, or worse, as to the statement’s falsity; and (4) actual damage to the plaintiff. See Technovate LLC v Fanelli, 2015 NY Slip Op 51349(U). A false statement that alleges criminal activity, or that is intended to injure a person’s occupation, is considered defamation per se under New York law. Id. If the person claiming defamation is a public figure, they must prove that the defendant acted with actual malice.
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The #MeToo movement began in 2017 with a series of allegations against men in positions of power in Hollywood and has reached numerous other workplaces. Most of the allegations have been made by women against men, but sexual harassment in New York City and around the country can happen between people of any gender. Men can sexually harass men, women can sexually harass men or women, and so on. Last year, New York University (NYU) suspended a female professor after investigating allegations of sexual harassment by a male former graduate student. The student then filed a lawsuit alleging violations of the New York City Human Rights Law (NYCHRL). Reitman v. Ronell, et al, No. 157658/2018, 1st am. complaint (N.Y. Sup. Ct., N.Y. Cty., Sep. 14, 2018).

Sexual harassment is considered a form of unlawful gender discrimination under the NYCHRL and other statutes. The NYCHRL covers both workplaces and educational institutions in New York City. Our legal system generally recognizes two categories of sexual harassment. Quid pro quo sexual harassment involves a situation where someone in a position of authority makes submitting to some form of sexual activity a condition of employment, such as a supervisor who will only assign good shifts to an employee if they agree to have sex. A hostile work environment occurs when unwelcome sexual conduct, ranging from remarks or jokes to contact or assault, directly interferes with a person’s ability to do their job.

The plaintiff was a graduate student at NYU in the Department of German from 2012 until he received his Ph.D. in 2015. He states in his complaint that he turned down offers from Yale, Brown, and Stanford Universities so that he could study under the defendant, “a world-renowned academic and author.” Reitman, complaint at 3. He alleges that the defendant “created a fictitious romantic relationship between herself and her student,” and that she “asserted complete domination and control over his life, both inside and outside of his academic endeavors.” Id. at 3-4. This allegedly included “forcibly groping, touching, and kissing him on a regular basis.” Id. at 4.
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A law enacted by the New York City Council, Local Law 95 of 2018, requires the city’s Commission on Human Rights (CHR) to make information available to the public about how city law addresses sexual harassment. Under the New York City Human Rights Law (NYCHRL), sexual harassment in the workplace is a form of unlawful sex discrimination. Local Law 95 requires the CHR to post information online about what constitutes sexual harassment and what remedies are available. It was enacted as part of a larger package of bills collectively known as the Stop Sexual Harassment in NYC Act. A new page went live on the CHR’s website in August 2018, shortly before the deadline set by the City Council. The page includes a wealth of information, including a notice and fact sheet summarizing city law on sexual harassment. These documents provide a helpful overview for individuals who might be considering whether to contact a New York City sexual harassment attorney.

The NYCHRL prohibits discrimination in employment on the basis of numerous factors, including gender. See N.Y.C. Admin. Code § 8-107(1)(a). The statute uses an expansive definition of “gender” that includes “actual or perceived sex, gender identity and gender expression,” and other characteristics. Id. at § 8-102. These definitions of “gender” and “gender discrimination” have a much broader scope than many antidiscrimination laws. The prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964, for example, is not expressly extended to factors like gender identity. Both statutes consider sexual harassment to be a type of sex discrimination.

The New York City Council passed Local Law 95 as Int. No. 614-A on April 11, 2018, and the mayor signed it into law on May 9. The law amended the NYCHRL by adding a new section entitled “Sexual harassment information,” codified at § 8-132. It requires the CHR to “post conspicuously on [its] website online resources about sexual harassment.” These resources must include information identifying sexual harassment as “a form of unlawful discrimination under local law,” providing examples of conduct that constitutes sexual harassment, identifying government agencies that receive complaints, describing the CHR’s complaint process, and stating that retaliation is also unlawful. The law also recommends including information on “bystander intervention education,” as well as “an interactive tool” that guides users through a CHR complaint. The effective date of the law was August 7, 2018.
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Sexual harassment in the workplace is considered to be unlawful discrimination on the basis of sex under federal, state, and city law in New York City. Employment discrimination laws in most jurisdictions do not require anti-sexual harassment training for managers, supervisors, and employees, but many regulatory agencies encourage them. The purpose of these programs is to educate both employees and management about their legal rights and obligations under antidiscrimination law. New York City is now going a step further. Under Local Law 96 of 2018, employers with fifteen or more employees will be required to conduct anti-sexual harassment trainings beginning in April 2019. This new requirement is part of a package of laws known as the Stop Sexual Harassment in NYC Act, which the mayor signed into law in May 2018.

Title VII of the Civil Rights Act and the New York City Human Rights Law (NYCHRL) both prohibit employment discrimination on the basis of sex or gender. See 42 U.S.C. § 2000e-2(a), N.Y.C. Admin. Code § 8-107(1)(a). Neither statute specifically mentions training programs in its antidiscrimination provisions. Regulations promulgated by the Equal Employment Opportunity Commission (EEOC) state that “[p]revention is the best tool for the elimination of sexual harassment.” 29 C.F.R. § 1604.11(f). The agency recommends that employers “take all steps necessary to prevent sexual harassment from occurring,” including educating employees about their rights under Title VII. Id. This implies training without specifically mentioning it.

The EEOC often includes mandatory training as part of settlement agreements in sexual harassment claims. In December 2018, for example, the agency settled a claim against a company that operates franchises of a sandwich restaurant in upstate New York. Two complainants alleged that a manager offered them jobs in exchange for sex, and did not hire them when they refused. In addition to damage payments to the complainants, the company agreed to “distribute a revised policy prohibiting sexual harassment” and “conduct anti-harassment training for managers and employees.”
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Many sexual harassment claims involve patterns of inappropriate comments. When assessing whether comments are inappropriate and of a sexual nature, New York City sexual harassment lawyers must consider verbal cues, body language, and facial expressions. Most or all of those cues are missing, however, in written communications. This is particularly true when emoji symbols are involved. “Emoji sexual harassment” is a relatively new, but quickly growing, area of law. Some lawsuits include emoji among the alleged inappropriate comments, often based on secondary meanings ascribed to particular symbols. At the same time, some courts have cited plaintiffs’ use of emoji when ruling for defendants.

Sexual harassment is a form of sex discrimination in violation of the New York City Human Rights Law (NYCHRL), the New York State Human Rights Law (NYCHRL), and Title VII of the Civil Rights Act of 1964. Unlawful sexual harassment generally takes two forms. “Hostile work environment” occurs when pervasive and unwelcome sexual behavior interferes with a person’s ability to do their job. “Quid pro quo sexual harassment” occurs when submission to some form of sexual activity is made a condition of obtaining or keeping employment. Unwanted sexual remarks or overtures are a common feature of both types of sexual harassment claim.

Emoji are a set of small images that can be inserted into text messages on smartphones, as well as in emails and social media services like Facebook. Certain symbols have taken on specific meanings. An article in Wired describes the symbols as “a primitive language.” As a result of this, the inclusion of emoji in a text message can convey unintended meanings, or plausibly-deniable meanings. Emoji symbols that depict objects that might be considered phallic, such as the corn and eggplant symbols, have taken on that secondary meaning. Even symbols that seem to have obvious meanings, like the “smiley face” emoji, can be subject to multiple interpretations.
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