Articles Posted in Sexual Harassment

In 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.

Workers 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.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).

Part of the basis for a hotel’s duty of care to its guests is based on the general fact “that the hotel has much better access to information about the danger than its guests do.” Id. at 512-13. A hotel also has a duty to protect its employees against criminal acts and other hazards, but absent a robust method for reporting and recording complaints by hotel employees against guests, it can be difficult for hotels to anticipate or respond to problems with individual guests.

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.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.

The most recent data regarding EEOC charges are from fiscal year 2017. The agency resolved more cases than it received during that year, reducing the overall backlog. It resolved a total of 99,109 charges, while receiving 84,254 new charges. About 25,000 new charges, or 30 percent of the total charges received, alleged sex discrimination in some form. The EEOC stated that nearly 6,700 of those charges alleged sexual harassment.

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.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.

A unanimous Supreme Court ruled in the plaintiff’s favor. Writing for the court, Justice Scalia stated that there was no “categorical rule excluding same-sex harassment claims from the coverage of Title VII.” Id. at 79. He distinguished the case from claims involving alleged sexual orientation discrimination, finding that “harassing conduct need not be motivated by sexual desire to support an inference of [sex] discrimination.”

Employers 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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Numerous employment statutes protect workers from employment discrimination in New York City on the basis of various protected categories. These laws’ prohibitions on sex or gender discrimination include sexual harassment in certain forms, including the use of sexual activity as a condition of employment, and patterns of sexually-oriented behavior that create a hostile work environment. These laws also prohibit employers from retaliating against employees who assert their legal rights. A lawsuit filed late last year alleges that supervisors at a security company, which was contracted to provide services at JFK International Airport in Queens, engaged in unwelcome and offensive conduct, including allegedly forcing the plaintiff to watch live video feeds of other employees engaging in sexual activity. Powell v. Allied Universal Security Services et al, No. 1:17-cv-06133, complaint (E.D.N.Y., Oct. 20, 2017). Several more employees have reportedly joined the case as plaintiffs in 2018.

The New York City Human Rights Law (NYCHRL) prohibits employment discrimination on the basis of gender, which includes sexual harassment. N.Y.C. Admin. Code § 8-107(1)(a). At the state level, the New York State Human Rights Law (NYSHRL) contains similar provisions. N.Y. Exec. L. § 296(1)(a). Title VII of the Civil Rights Act of 1964, a federal statute, also provides similar protections, but it is not the only federal law that covers hostile work environment claims. The Civil Rights Act of 1991 specifically addresses racial discrimination in various areas, including employment, and prohibits “impairment” of “the full and equal benefit of all laws and proceedings…as is enjoyed by white citizens.” 42 U.S.C. § 1981.

The lead plaintiff in Powell worked for the defendant at JFK Airport for four years, according to her complaint. She alleges that she was given a choice between “hav[ing] sex with male supervisors and get[ting] ahead,” or “refus[ing] and be[ing] relentlessly harassed and retaliated against.” Powell, complaint at 1. She states that she “chose the latter,” id., and therefore faced discrimination based on race and gender, followed by retaliation for reporting the discrimination.
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Asserting a claim for sexual harassment in New York City can be extremely harrowing, even with the city’s progressive employment laws. A claimant might risk professional or personal consequences for speaking out, which is why employees with similar allegations often seek to pool their resources and assert their claims as a group. A recent decision by the U.S. Supreme Court, Epic Systems Corp. v. Lewis, 584 U.S. __ (2018), limits employees’ ability to bring collective actions against their employers in some situations. The case specifically deals with collective arbitration of disputes under the National Labor Relations Act (NLRA), but advocates for people who have experienced sexual harassment worry about the impact of the decision on a wide range of employment claims.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits employment discrimination on the basis of sex and several other factors. The New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq., prohibits employment discrimination based on a wide range of factors that includes sex. Both statutes, according to court interpretations, recognize sexual harassment as a form of unlawful sex discrimination. Employees may file complaints of alleged acts like sexual harassment with administrative agencies. Those agencies investigate the claims, and either pursue the claim themselves or grant the complainants the right to sue for damages in court. Many employment agreements, however, contain clauses that require employees to submit any and all disputes to arbitration.

The Federal Arbitration Act (FAA) of 1925, 9 U.S.C. § 1 et seq., encourages the use of arbitration as a private method of dispute resolution. It states that an arbitration clause in a contract “shall be valid, irrevocable, and enforceable,” unless the contract itself is legally unenforceable or invalid. Id. at § 2. Courts have the authority to compel a party to a contract with an arbitration clause to participate in arbitration, or to hold that party in contempt. Courts may also enforce arbitration awards that it finds to be lawful.
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In New York City, sexual harassment claims are covered by federal, state, and city law. The New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) offer some of the most comprehensive protection against discrimination in the country. Sexual harassment in the workplace has received a considerable amount of media attention in the past year, and both New York State and New York City have responded by enacting a series of new laws addressing numerous aspects of workplace harassment. The New York State Legislature passed a budget bill, S. 7507/A. 9507, in March, and the Governor signed it into law on April 12, 2018. Part KK of the bill includes multiple sexual harassment provisions. The New York City Council passed seven separate laws dealing with sexual harassment, collectively known as the Stop Sexual Harassment in NYC Act. The Mayor signed them all on May 9.

The new laws overlap on two matters: mandatory anti-harassment training and policies, and requirements for public contractors.

Mandatory Anti-Harassment Training

Subpart E of Part KK of the New York budget bill amends the Labor Law, adding a section that directs the state to develop a “model sexual harassment prevention guidance document” and a “sexual harassment prevention policy.” Employers must adopt the model policy, or one that is consistent with it; must distribute this policy in writing to all employees; and must provide annual anti-harassment training programs. This subpart takes effect on October 9, 2018.
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Over the past year, countless people have come forward with accounts of sexual harassment in the workplace. Known as the #MeToo movement, it began in the entertainment industry, and has expanded to include many other industries and professions. Fashion models have described their experiences with harassment at photo shoots, fashion shows, and other events in New York City. Sexual harassment is covered by laws prohibiting sex discrimination in employment, but the fashion industry presents challenges under laws like the New York State Human Rights Law (NYSHRL). These laws generally apply to “employees.” Many who work in fashion are considered to be independent contractors. In October 2017, an Assemblywoman from Queens introduced A08572, the “Models’ Harassment Protection Act” (MHPA). This bill would amend the NYSHRL to include provisions specifically applying to the types of sexual harassment that models often experience, and to account for the employment relationship between model and designers, photographers, and others.

The U.S. Supreme Court established that the prohibition on sex discrimination in employment under federal law includes sexual harassment. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). New York courts have made the same determination with regard to the NYSHRL. See, e.g. Belle Ctr. v. Human Rights Div., 221 A.D.2d 44, 49-50 (N.Y. App. Div., 4th Dept. 1996).

Plaintiffs can allege two types of sexual harassment under these laws. Quid pro quo sexual harassment occurs when a “supervisor…expressly or tacitly link[s] tangible job benefits to the acceptance or rejection of sexual advances,” regardless of how the plaintiff responds to said advances. Id. at 50. Hostile work environment occurs when pervasive and unwelcome conduct of a sexual nature “alter[s] the conditions of the [plaintiff’s] employment.” Id. Neither theory of sexual harassment requires proof of economic loss, but a quid pro quo claim requires “proof of linkage between the offensive conduct and decisions affecting employment.” Id. at 50-51.
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