Articles Posted in Sexual Harassment

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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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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