sexual harassmentSexual harassment in the workplace has been a major topic of public discussion in the past few weeks, due in large part to the numerous allegations against Hollywood producer Harvey Weinstein. These allegations have placed the movie business under a spotlight, exposing behaviors that have long been considered “open secrets” among many people, and causing more than a few people in positions of power—mostly, but not exclusively, men—to consider their own behavior. Despite this newfound attention to the issue, sexual harassment in movies and television has been a well-known phenomenon for some time. It even has a nickname:  “the casting couch.” Sexual harassment is also a pervasive problem beyond the movies. In New York City, sexual harassment is essentially considered part of the culture of many businesses, from Wall Street to neighborhood restaurants. A survey of more than 2,000 women by the magazine Cosmopolitan found that one-third of the respondents had experienced sexual harassment at work. Hopefully, the attention that is currently focused on Hollywood will also consider the many other places where sexual harassment can occur.

Anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964 and laws in New York and New York City, view sexual harassment as a form of unlawful sex discrimination. It may consist of unwanted and inappropriate comments, jokes, or overtures of a sexual nature, as well as non-consensual touching and overt sexual assault. The federal Equal Employment Opportunity Commission (EEOC) states that actions such as these constitute sexual harassment in a legal sense in several possible situations, including when obtaining a job is conditioned on agreeing to some form of sexual activity. Sexual harassment also occurs when harassing conduct is severe or pervasive enough that it creates a hostile work environment. These situations can occur in nearly every type of workplace.

The movie business might offer the archetypal example of the EEOC’s first definition of sexual harassment. The term “casting couch” dates back to at least the 1930s, in the early days of the film industry. It refers to the notion that actresses—and sometimes actors—must submit to sexual activity with a producer or director in order to obtain roles in films and build their careers. Over the decades, the term has come to represent the industry’s tendency to tolerate this sort of behavior, even if it nominally claims to oppose it.

sunbeamNew York City’s employment discrimination statute is one of the most comprehensive in the nation, protecting job seekers and employees from discrimination based on a wide range of factors. Since 2015, this has included discrimination because of criminal history. Once a person has completed the punishment they received for a criminal offense, we often say that they have “paid their debt to society.” In truth, they often continue “paying” through a lack of employment opportunities, regardless of whether their particular criminal record has any bearing on the job they are seeking. Laws like New York City’s Fair Chance Act (FCA) and Los Angeles’ Fair Chance Initiative for Hiring Ordinance (FCIHO) specifically target discrimination based on criminal history, but federal law may also play a role. Guidance from the Equal Employment Opportunity Commission (EEOC) states that criminal history discrimination may violate Title VII of the Civil Rights Act of 1964 if it disproportionately affects employees and job applicants based on a protected category like race or national origin.

Some employers around the country maintain policies against hiring people with felony convictions, or even people with misdemeanor or arrest records. Laws like the FCA seek to eliminate hiring practices that disqualify job applicants at the beginning of the process or that discourage them from applying in the first place. Under the FCA, employers may not advertise that a job opening is only available to people without criminal records. N.Y.C. Admin. Code § 8-107(11-a)(a)(1). Employers are further prohibited from asking job applicants about their criminal history, if any, until they have made a conditional offer of employment. Id. at § 8-107(11-a)(a)(3). If an employer makes an adverse employment decision based on criminal history information obtained at this point, they must notify the applicant in writing and give them an opportunity to respond. Id. at 8-107(11-a)(b).

Laws like the FCA specifically address the use of criminal history in employment decisions, and they also generally prohibit discrimination on the basis of criminal convictions or arrest records. Id. at §§ 8-107(10), (11). Title VII’s protections against discrimination, on the other hand, are limited to five broad categories:  “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000-2(a). These include adverse actions like refusing to hire or firing an individual because of a protected status, as well as other workplace practices that adversely affect certain employees because of that status. Even policies or practices that appear neutral with regard to race or another protected category—i.e., lacking discriminatory intent—could violate Title VII because of discriminatory impact.

HollywoodSexual harassment is a pervasive problem throughout the country, affecting nearly every type of business. Recent allegations against a particularly well-known Hollywood movie producer have started a nationwide conversation about workplace sexual harassment, illustrating not only the extent to which powerful people can demand sexual activity as a condition of employment opportunities, but also the reluctance of others to intervene or speak out, often out of concern for their own jobs. In a legal sense, sexual harassment includes many more types of situations than the archetypal “casting couch” scenario, in which powerful people take advantage of people with some of the least power. This scenario provides a useful overview of how New York City sexual harassment often occurs and how people can fight against it.

Federal, state, and New York City employment statutes prohibit employment discrimination based on sex, which includes sexual harassment. According to the federal Equal Employment Opportunities Commission (EEOC), sexual harassment can range from unwelcome sexual comments or jokes to nonconsensual touching and outright sexual assault. The EEOC identifies three scenarios in which such conduct meets the legal definition of sexual harassment:  (1) when one’s employment is conditioned on submitting to sexual conduct, (2) when decisions affecting a complainant’s employment are based on their submission, or (3) when the conduct creates a hostile work environment or otherwise “unreasonably interfer[es]” with the complainant’s ability to do their job. 29 C.F.R. § 1604.11(a).

A pair of Supreme Court decisions issued in 1998 affirmed that employers are vicariously liable for sexual harassment perpetrated by supervisors, defined as employees whom the employer has empowered to make employment-related decisions like hiring, firing, promotions, and assignment of job duties and shifts. If the alleged perpetrator of sexual harassment is not in a supervisory position over the complainant, such as a co-worker or customer, the complainant must also show that the employer was aware of the harassment but failed to act.

In the wake of the recent sexual abuse and harassment allegations involving individuals in the entertainment industry, one New York lawmaker has taken action to prevent New York sexual harassment in an industry that had tacitly accepted that such abuses occur for decades. According to a recent news report, New York State Assemblywoman Nily Rozic had proposed an amendment to the state’s anti-discrimination laws that would clarify who can be held accountable in the fashion industry when a model is sexually abused or harassed.

Fashion ModelSexual Abuse and Harassment in the Fashion Industry

According to the report, the fashion industry has been plagued by rampant sexual abuse and harassment. Models have reported being asked to sit on clients’ laps, to undress for jobs that should not require it, and to remove clothes without any advance notice. Models who refuse these requests and demand the respect that they deserve too often find themselves without work.

Of course, sexual abuse and harassment of anyone – including models – is illegal under New York law, and those who experience either abuse or harassment can report the conduct to the police or district attorney’s office. However, due to the manner in which models are compensated, there is little accountability across the industry, with everyone along the employment chain turning a blind eye to what everyone knows is happening.

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Fox News ChannelA major cable news network based in New York City has faced multiple allegations of sexual harassment by both behind-the-scenes staffers and on-screen personalities, beginning in mid-2016. The lawsuits and other allegations have led to millions of dollars in settlements and the ouster of the chief executive officer and at least two hosts. The multitude of allegations covers a wide range of alleged actions that could lead to a New York sexual harassment claim.

Laws like the New York City Law Against Discrimination prohibit discrimination on the basis of sex and other factors. Sex discrimination includes sexual harassment, which can range from inappropriate sexual comments to outright sexual assault. A single act can support a claim of sexual harassment if it is severe enough. Acts that might seem minor when viewed in isolation can support a claim if they form a pattern of similar behavior. A company can be directly liable for sexual harassment by a manager, supervisor, or other person in a position of authority over a claimant. If a co-worker or other person in the workplace is the alleged perpetrator, the employer may be liable if it was made aware of the harassment but failed to act.

The sexual harassment allegations center on Fox News and its former CEO, the late Roger Ailes. In the summer of 2016, numerous women came forward with allegations of sexual harassment by Ailes and others. One former employee described the harassment as “psychological torture” but stated that she endured it because she believed it was necessary to continue in her career. After a prominent female host filed a sexual harassment lawsuit against Ailes in July 2016, at least six more women soon came forward with allegations against him. Ailes resigned as CEO of the network later that month. He died in May 2017.

Pride Flag mapEmployment discrimination based on gender identity or gender expression remains an uncertain legal matter in many parts of the country, with many seemingly contradictory interpretations of existing law. Federal law does not expressly recognize gender identity and gender expression as protected categories, but the Equal Employment Opportunity Commission (EEOC) has interpreted the prohibitions on sex discrimination in Title VII of the Civil Rights Act of 1964 to include gender identity and expression. The Department of Justice (DOJ), on the other hand, has recently changed its position to the view that Title VII does not apply to these categories. New York gender identity discrimination law protects transgender workers from discrimination at the state level, as well as in many municipalities. A lawsuit filed earlier this year by a transgender woman in a Michigan state court appears to be seeking to apply the EEOC’s position to state law, arguing that sex discrimination inherently includes gender identity and expression. Reed v. McDonald’s Corp., et al., No. 17-007889-CD, complaint (Mich. Cir. Ct., Wayne Cty., May 25, 2017).

The New York State Human Rights Law prohibits employment discrimination on the basis of “sex,” while the New York City Human Rights Law covers discrimination based on “gender.” N.Y. Exec. L. § 296(1)(a), N.Y.C. Admin. Code § 8-107(1)(a). Both statutes define these terms to include gender identity, including when that identity does not match the gender assigned to an individual at birth, and gender expression. 9 CRR-NY 466.13(c), N.Y.C. Admin. Code § 8-102(23).

Federal employment discrimination law does not expressly include gender identity or gender expression in its definition of “sex.” The EEOC, however, has interpreted Title VII as applying to discrimination based on transgender status, citing court opinions regarding stereotypes about sex and gender. See, e.g., Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (Apr. 20, 2012). This interpretation of Title VII now conflicts with the DOJ’s view of the statute. Attorney General Eric Holder issued a memorandum in December 2014 directing U.S. Attorneys and DOJ agency heads to apply a similar reading of Title VII to the EEOC. This interpretation was revoked in a memo issued on October 4, 2017.

Martini GlassAnnual holiday parties are supposed to be a time to relax and socialize with co-workers. Unfortunately, this is not the experience of many people. The relaxed environment, combined with the presence of alcohol, increases the likelihood that a co-worker might act illegally or inappropriately, even veering into the territory of sexual harassment. For non-supervisory employees, conduct at work-sponsored holiday parties can contribute to a hostile work environment, which is a type of New York sexual harassment. This unfortunate experience is mirrored in a lawsuit filed by a former Beacon Hotel employee in New York.

The plaintiff attended her company’s holiday party. During the party, her supervisor, a senior manager, invited her and other employees to a spa to get massages. Her supervisor allegedly flashed his genitals at the plaintiff and other employees, which the plaintiff found offensive. Later, the plaintiff and other employees allegedly went into a hot tub, where her supervisor made advances toward her and fondled her. Each time this happened, the plaintiff allegedly rejected his advances.

When the plaintiff returned to work, she alleges that her senior manager became hypercritical of her work performance and treated her differently from her male co-workers. For instance, the plaintiff was written up when she was 10-15 minutes late, but her supervisor did not do the same for male employees who came to work late. The plaintiff was terminated from employment, even though, prior to the alleged holiday party harassment, she received acceptable to excellent job performance reviews.

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Gender identity and gender expression are not specifically identified as protected categories in federal anti-discrimination law. New York City’s employment anti-discrimination statute includes both gender identity and gender expression, making it one of the most extensive such laws in the country. Despite a variety of recent setbacks at the federal level, caselaw has been gradually developing in a direction that offers some hope for the view that gender identity and gender expression are already protected by federal prohibitions on sex discrimination. A U.S. Supreme Court decision finding that Title VII of the Civil Rights Act of 1964 prohibits “sex stereotyping” could provide a basis for claims based on gender identity and expression. A New York gender discrimination case filed in a Manhattan federal court seeks confirmation of an arbitration award finding sex discrimination, based in part on sex stereotyping. Berger v. Kargo Global, Inc., No. 1:17-cv-04288, petition (S.D.N.Y., Jun. 8, 2017).

Housewife cartoonTitle VII states that it is “an unlawful employment practice” to discriminate against an employee or job applicant “because of…sex” or other factors. 42 U.S.C. § 2000e-2(a). The definition of “because of sex” has expanded over the years, through both legislation and court decisions, to include more specific acts like sexual harassment and pregnancy discrimination. See, e.g. id. at § 2000e(k). The Supreme Court has also held that sex discrimination under Title VII includes discrimination on the basis of stereotypes about how members of a particular gender should, or should not, behave. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Justice Brennan, writing for the majority in Price Waterhouse, offered the example of “[a]n employer who objects to aggressiveness in women” but who “require[s] this trait” in employees. Id. at 251. This would put female employees “in an intolerable and impermissible Catch-22,” since they would risk losing their job no matter what they do. Id. Subsequent court decisions have indicated that unlawful sex stereotyping can involve both female employees deemed insufficiently feminine and male employees deemed insufficiently masculine. This analysis could also apply to transgender and gender-nonconforming employees, although no clear legal precedent currently exists.

trainingThe Equal Employment Opportunity Commission (EEOC) is the federal agency charged with enforcing various employment statutes, including the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. In addition to the statutory language of Title VII and the court decisions interpreting it, the EEOC has developed its own regulations and guidelines regarding investigation and enforcement. The agency’s guidelines regarding harassment currently date from the 1990s, but it released proposed revisions to those guidelines earlier this year. It does not appear that the agency has adopted the new guidelines, but they offer a useful look at its priorities regarding harassment and discrimination, including New York City sexual harassment situations.

Title VII prohibits discrimination in employment on the basis of several factors, including sex. Amendments to the statute and Supreme Court decisions have expanded Title VII’s definition of “sex discrimination” to include a wide range of acts, including pregnancy discrimination, sex stereotyping, and sexual harassment. An employer violates Title VII when an executive, manager, or supervisor harasses an employee because of their sex, such as by making inappropriate remarks or demands of a sexual nature, or when an employer knows that such conduct is occurring between coworkers but fails to take reasonable action to remedy the situation.

The EEOC’s “Policy Guidance on Current Issues of Sexual Harassment” was issued on March 19, 1990. The agency first identified sexual harassment as a violation of Title VII in 1980, six years before the Supreme Court recognized it as such in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The purpose of the 1990 guidance documents was to build on the agency’s definition of sexual harassment in light of Vinson. The document addressed several specific questions, including how to determine when sexual conduct is “unwelcome” and whether a work environment is “hostile.”

New YorkSexual harassment in the workplace is unlawful in New York City under multiple anti-discrimination statutes. Multiple court decisions have held that prohibitions on sex discrimination include sexual harassment. Aggrieved employees can assert their rights before regulatory agencies at the city, state, or federal levels, or they can take their claims to state or federal court. A lawsuit filed in a state-level court in Manhattan earlier this year illustrates many of the types of claims seen in New York City sexual harassment cases. Green v. Exusia, Inc., et al., No. 151989/2017, complaint (N.Y. Sup. Ct., N.Y. Cty., Mar. 1, 2017). The complaint asserts causes of action for discrimination and retaliation under city and state laws, and it seeks monetary damages, declaratory judgment, and injunctive relief.

The New York City Human Rights Law (NYCHRL) is one of the most comprehensive anti-discrimination statutes in the country, offering protection against discrimination and harassment on the basis of a wide range of categories, including gender. N.Y.C. Admin. Code § 8-107(1)(a). It defines “gender” to include not only a person’s “actual or perceived sex” but also factors like gender identity and gender expression. Id. at § 8-102(23). The New York State Human Rights Law (NYSHRL), while not as far-reaching as the NYCHRL, offers protection against employment discrimination on the basis of sex. N.Y. Exec. L. § 296(1)(a).

The plaintiff in Green began working for the defendant, described in the complaint as “a rapidly growing data and information management consulting firm,” in November 2015. Green, complaint at 1. The job involved “working directly with [the company’s] Chairman, President, and Chief Executive Officer,” who is also individually named as a defendant. Id. The plaintiff’s experience as an employee, she alleges, was “marred by [the individual defendant’s] sexual desires and offensive conduct.” Id.

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