The New York City Human Rights Law (NYCHRL) is among the most comprehensive anti-discrimination statutes in the country, protecting employees and job applicants against discrimination, harassment, and retaliation on the basis of a wide range of factors. Much like state and federal employment statutes, New York City’s employment law treats sexual harassment as a form of unlawful sex discrimination. City law differs, however, in its requirements for establishing a hostile work environment. Some lawmakers worry that the statutes in their jurisdictions impose too great a burden on employees alleging sexual harassment in the form of a hostile work environment, and they are looking to the NYCHRL for new ideas. In January 2018, a California state senator held a public hearing on the “severe or pervasive” standard in hostile work environment claims. The hearing included testimony by the New York City Human Rights Commissioner.
Under California law, a plaintiff alleging a hostile work environment must establish that the alleged harassment was “pervasive or severe.” Cal. Civ. Code § 51.9(a)(2). The U.S. Supreme Court has held that a hostile work environment constitutes unlawful sex discrimination under federal law when the harassing behavior is “severe or pervasive enough to create…an environment that a reasonable person would find hostile or abusive.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). California courts have adopted this standard for sexual harassment claims under state law. Lyle v. Warner Bros. Television Productions, 42 Cal.Rptr.3d 2, 12 (2006). The California Supreme Court has identified “[c]ommon sense, and an appropriate sensibility to social context” as a guide in determining whether conduct is sufficiently “severe.” Id. at 16. To meet the “pervasive” requirement, a plaintiff “must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” Id.
The “severe or pervasive” standard has been criticized for overlooking all but the worst instances of workplace harassment. According to one New York appellate court, it has “routinely barred the courthouse door to women who have, in fact, been treated less well than men because of gender.” Williams v New York City Hous. Auth., 61 A.D.3d 62, 73 (N.Y. App., 1st Div. 2009). Judicial interpretations of the NYCHRL therefore do not “simply mimic its federal and state counterparts.” Id. at 74. Based on findings that the “severe or pervasive” standard “unduly narrows the reach of the law,” the NYCHRL requires a plaintiff claiming a hostile work environment to prove “that she has been treated less well than other employees because of her gender.” Id. at 78.
Sexual harassment in the workplace has received much attention in recent months, starting with a lengthy series of allegations against a particularly powerful Hollywood movie producer. As more and more people feel emboldened to come forward with their accounts of sexual harassment, attention has turned to other types of workplaces, including financial firms, technology companies, government agencies, and legislators’ offices. The California state senator who scheduled the hearing on the “severe or pervasive” standard introduced a bill that would amend the state’s sexual harassment law to include investors, elected officials, and others in the list of people who could be liable for sexual harassment. The hearing, in part, explored the differences between the “severe or pervasive” and the “treated less well” standards.
The hostile work environment lawyers at Phillips & Associates advocate for workers in New York City who are asserting claims based on unlawful workplace practices like sexual harassment. To schedule a free and confidential consultation with a member of our team, contact us today online or at (212) 248-7431.
More Blog Posts:
Federal Judge Steps Down Amid Allegations of Inappropriate Sexual Comments and Unwelcome Touching, New York Employment Attorney Blog, December 18, 2017
How New York Employment Laws Deal With Alleged Sexual Harassment Among Entrepreneurs, Venture Capitalists, New York Employment Attorney Blog, December 6, 2017
Bullying and Sexual Harassment in New York City Workplaces, New York Employment Attorney Blog, November 28, 2017