Staten Island FerrySexual harassment in the workplace can have a devastating impact, causing financial, emotional, and even physical harm. While that impact is usually—and justifiably—the focus, it is worth noting that sexual harassment is also bad for business, not only because it can result in civil liability but also because of the damage it does to a company’s productivity. Sexual harassment can even pose a danger to the public, as a lawsuit currently pending in a Brooklyn federal court alleges. The plaintiff claims that an environment of sexual harassment led to her supervisors ignoring her communications while she was working in her capacity as an assistant captain on the Staten Island Ferry. KA v. City of New York, No. 1:17-cv-00378, complaint (E.D.N.Y., Jan. 23, 2017). A lack of contact between a ferry and ferry employees on land, the plaintiff alleges, puts ferry passengers at risk.

Title VII of the federal Civil Rights Act of 1964 prohibits discrimination on the basis of sex, as well as retaliation against an employee who speaks out against such unlawful conduct. The legal definition of sex discrimination includes various forms of sexual harassment, such as demands for sexual activity of some sort as a condition of employment. It also includes unwanted remarks or overtures of a sexual nature, as well as sexualized conduct that creates a hostile work environment. The New York State Human Rights Law (NYSHRL) includes similar provisions that apply statewide, and the New York City Human Rights Law (NYCHRL) provides these protections at the city level.

According to her complaint, the plaintiff has worked for the Staten Island Ferry for about 10 years, from 2007 to 2008 and from April 2009 to the present. She states that she became licensed to captain a ferry in 2010, and she has held the position of assistant captain since about 2011. She has sought promotion to captain but alleges that her requests have been met with either “vague, evasive, and ultimately empty comments” or “definitive, discriminatory remarks…such as…’you can’t stand up to the men.’” KA, complaint at 5-6.

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Statue of LibertyNew York City is truly diverse, providing a home to millions of people of different religions, races, ethnicities, and cultures. This diversity helps make New York City a destination for people from all over the country and all over the world. When one group suffers from discrimination, harassment, and other disparate treatment because of their religion, race, or ethnicity, all of New York City suffers. We have entered a difficult time in this country, with widespread reports of harassment and even assaults against people of the Muslim faith or people perceived to be of the Muslim faith. This type of treatment can also enter the workplace, but anti-discrimination laws at the federal, state, and city levels assist employees in asserting their rights. A campaign launched by the New York City Mayor’s Office and the Commission on Human Rights, “I Am Muslim NYC,” seeks to educate people about city law.

The New York City Human Rights Law (NYCHRL) offers more protections for workers than almost any other employment statute in the country. It not only prohibits religious and racial discrimination but also expressly addresses employers’ duty to accommodate reasonable requests related to religious observances. In connection with its campaign, the city has issued a fact sheet outlining the ways the NYCHRL protects Muslims and others from discrimination in employment, housing, and public accommodations like restaurants and hotels. It includes three important points about employment discrimination.

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clapper boardNew York City has some of the strongest employee rights protections in the country. Federal law prohibits workplace discrimination on the basis of five factors:  race, sex, religion, color, and national origin. The New York City Human Rights Law (NYCHRL) goes substantially further than this. A recent decision from a New York City court addresses the application of the NYCHRL to claims of sexual orientation discrimination, and it indicates that the statute protects against a wide range of unlawful acts by employers, managers, supervisors, and co-workers. Zimmer v. Warner Brothers Pictures, Inc., 103732/2012, NYLJ 1202777712512, at *1 (N.Y. Sup. Ct., N.Y. Cty., Dec. 23, 2016).

Title VII of the Civil Rights Act of 1964, the main federal statute addressing employment discrimination, does not expressly mention sexual orientation as a protected category. The Equal Employment Opportunity Commission (EEOC), the agency authorized to enforce Title VII, has taken the position that discrimination on the basis of sexual orientation falls under Title VII’s concept of sex discrimination. Baldwin v. Dept. of Transp., App. No. 0120133080, decision (EEOC, Jul 15, 2015). This determination is not binding on any court of law, however. Some federal district courts have ruled in favor of plaintiffs claiming sexual orientation discrimination under Title VII, but at least one appellate court has rejected such a claim. Hively v. Ivy Tech Community College, South Bend, 830 F.3d 698 (7th Cir. 2016).

While the EEOC must read between the lines of Title VII to find any sort of protection against sexual orientation discrimination, the NYCHRL is entirely unambiguous on the matter. Its prohibitions of employment discrimination include “actual or perceived…sexual orientation” as a protected category. N.Y.C. Admin. Code § 8-107(1)(a). It defines “sexual orientation” to include “heterosexuality, homosexuality, or bisexuality.” Id. at § 8-102(20).

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New York CityA former employee of a New York City medical marijuana company is suing the company for multiple causes of action under state and city laws. JP v. TO, et al., No. 158407/2016, complaint (N.Y. Sup. Ct., N.Y. Cty., Oct. 6, 2016). The plaintiff alleges that she was subjected to sexual harassment, that she faced discrimination based on her religion and her health status, and that the company terminated her in retaliation for complaining about these acts. In addition to the business entity, the defendants include several individual owners, directors, and officers of the company.

Laws at the city and state levels in New York City prohibit employment discrimination on a wide range of bases, including sex, religion, and disability. Under both the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL), sexual harassment is considered to be unlawful sex discrimination. Both statutes define “disability” in this context to include “a physical, mental or medical impairment,” and the NYCHRL also adds psychological impairments to the list. N.Y. Exec. L. § 292(21), N.Y.C. Admin. Code. § 8-102(16). They both generally define an “impairment” as arising from a physiological or neurological condition, as well as a psychological or mental condition in the case of the NYCHRL.

The plaintiff worked for the defendant as an “in-house consultant and project manager.” JP, complaint at 3. She describes herself as a Roman Catholic and a “female survivor of cancerous PASH,” a type of breast cancer. Her condition “cause[s] her a large degree of pain and discomfort” and “requir[es] her to take prescribed painkillers and muscle relaxers periodically.” Id. at 4. Her job responsibilities, according to her complaint, included licensing and compliance with state medical cannabis laws, project management, and various business planning and development activities. She alleges a variety of actions that violated state and federal laws.

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Lyndon JohnsonAnti-discrimination statutes, which cover New York City at the federal, state, and local levels, treat sexual harassment as a type of prohibited sex discrimination. As of 2017, this is a relatively well-established legal principle, but it took time to get to this point. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on several factors, including sex. This did not expressly include sexual harassment until the U.S. Supreme Court ruled on this type of dispute 22 years later. The inclusion of sex as a protected class under Title VII was also never a foregone conclusion. Numerous legal scholars have noted that the addition of sex to Title VII began as a “joke” in the House of Representatives, intended as an effort to prevent the bill’s passage. Fortunately for future generations of Americans, that effort failed.

Title VII’s protections against sex discrimination, found in 42 U.S.C. § 2000e-2, are unique within the Civil Rights Act itself. In addition to sex, this provision prohibits discrimination on the basis of race, color, religion, and national origin. The other well-known provisions of the statute do not include sex. Title II, for example, prohibits discrimination in “public accommodations” on the basis of “race, color, religion, or national origin.” Id. at § 2000a(a). Title III addresses discrimination in access to public facilities on the basis of these four categories. Id. at § 2000b(a). Title VI deals with discrimination in federally assisted programs on the basis of race, color, or national origin—but not sex or religion. Id. at § 2000d. How, then, did sex discrimination become part of Title VII?

Congress passed the Civil Rights Act on July 2, 1964, as Public Law 88-352, 78 Stat. 241. Only two states, Hawaii and Wisconsin, had passed laws against sex discrimination before this. Representative Howard W. Smith, a Democrat from Virginia and an outspoken opponent of civil rights legislation, reportedly added sex to Title VII as a “joke.” He apparently intended his addition to the bill to dissuade other representatives from voting for it. His scheme “backfired” on him “when the amendment was adopted on the floor of the House under the House five-minute rule.” Rabidue v. Osceola Refining Co., 584 F.Supp. 419, 428 n. 36 (E.D. Mich. 1984).

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Our jobs are, in many ways, the centerpieces of our lives. We often depend on employment not only to support ourselves and our families but also to provide features like health insurance and retirement savings. For many people, their job shares a close relationship with their identity—one of the first questions people often hear upon meeting someone is “What do you do?” As important as having a job is in our society, though, the employer/employee relationship has a built-in imbalance of power. An employee may be unwilling to challenge discrimination or harassment for fear of losing their job. New York City offers multiple legal protections for employees, and a skilled employment attorney can use these laws to level the playing field, so the employee can assert their rights.

Employers ought to value their employees for the quality of their work and the skills they bring to the table. This accurately describes most employers, but discrimination on the basis of factors like race, sex, religion, sexual orientation, gender identity, criminal history, and others continues to hinder people’s employment prospects for no valid reason. Employees in New York City enjoy the protection of numerous statutes addressing discrimination, harassment, and retaliation.

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BaghdadThe U.S. legal system operates at several levels, some of which may overlap at times, and some of which remain wholly independent of each other. In New York City, an employee or job applicant who has experienced sexual harassment or another form of unlawful discrimination may be able to file suit under city, state, or federal laws, or some or all of these. When a harassment or discrimination claim involves parties from different countries, or when the alleged unlawful acts occur in another country, complicated questions may arise about jurisdiction and international law. Reports of sexual harassment and assault by aid workers, who work for American organizations in other countries, raise this sort of question. Several recent lawsuits have also addressed the issue.

Each country has sovereign jurisdiction over their own legal disputes. For example, the laws of the United States are the “law of the land” within U.S. territory. The same is true for Canadian law within Canadian borders, Mexican law in Mexico, and so forth. International law consists of treaties and therefore relies on the consent of each individual country. Organizations like the United Nations (UN) maintain and monitor treaties among member nations but have no inherent enforcement authority. Sexual harassment that occurs across an international border is subject to the laws of one or more countries. This could be the law of the country where it occurs, but in the case of Americans working in a foreign country for an American employer, U.S. law could still apply.

The UN issued General Assembly Resolution 48/104, entitled the “Declaration on the Elimination of Violence against Women,” in 1993. In Article 2(b), it includes “sexual harassment and intimidation at work, in educational institutions and elsewhere” in its definition of violence against women. The resolution has no direct legal force on UN member nations. Article 4(d) – (f) encourages member nations to develop their own legislative and administrative provisions to address the issue. Several other international agreements contain similar declarations, including the Beijing Platform for Action from 1995 and the 1979 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). The U.S. is not a signatory to CEDAW.

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envelopeState and local governments around the country are enacting laws addressing criminal history discrimination. Job seekers often find that a criminal conviction automatically disqualifies them for jobs, regardless of whether the particular conviction is relevant to the job. Finding employment is a critical part of reentering society after spending time in jail, and having a job is often a condition of probation or parole. Categorically denying people job opportunities on this basis harms those people, and it can also harm employees and the broader economy by keeping valuable workers out of the workforce. Laws against criminal history discrimination, often known as “Ban the Box” (BTB) laws, keep criminal history information out of the job application process until an offer of employment is imminent. The California Legislature enacted a law in 2016 that extends this protection to various types of juvenile criminal records.

At a minimum, BTB laws prohibit employers from advertising job openings as being open only to people without a criminal history, and from inquiring about criminal history in the initial stages of the job application process. The “box” in the name refers to the proverbial check box on job applications asking a yes/no question about criminal history, resulting in the automatic rejection of anyone who checks “yes.” In New York City, an applicant must have a conditional offer of employment before the employer may ask about their criminal history. N.Y.C. Admin. Code § 8-107(11-a)(a)(2). If the employer then makes an adverse decision based on this information, it must notify the applicant and give them an opportunity to respond.

A separate judicial system handles juvenile criminal cases in most states. They tend to use different legal terminology and procedures, and they focus more on rehabilitation than on punishment. Juvenile records are often sealed once a person turns 18, meaning that no one can access the records without a court order. Many states allow for the expungement of juvenile records, meaning that the records are removed and destroyed. New York automatically seals the records of juvenile cases that do not result in a conviction, known as a “finding of delinquency.” N.Y. Fam. Ct. L. § 375.1. In cases that result in such a finding, the defendant can file a motion to seal the records. Id. at § 375.2.

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pregnant womanWorkers in New York City who are pregnant or who have recently given birth are protected by multiple statutes against pregnancy discrimination. While protections against losing one’s job or suffering a pay cut due to pregnancy, to name only two possible examples, are critically important, they do not address another major issue. The United States is one of the very few countries in the entire world that make no provision whatsoever for paid family leave, including parental leave after childbirth. Only four states currently have paid family leave systems. New York will become the fifth such state in 2018, when a bill signed into law in April 2016 takes effect.

The federal Family and Medical Leave Act (FMLA) guarantees a certain amount of unpaid family leave for qualifying workers of covered employers. In addition to the fact that the leave is unpaid, many employers do not fall under the FMLA’s jurisdiction, and workers have to meet certain benchmarks for the total number of hours worked in order to qualify. As a result, the FMLA’s helpfulness is limited. Most of the world’s nations provide some form of paid family leave. Canada and the United Kingdom, for example, provide six months to one year of paid family leave. Germany, Sweden, Japan, and most countries in Eastern Europe provide a year or more. According to the World Policy Center, the United States joins Papua New Guinea and Suriname in offering no paid leave at all.

Aside from New York, four states have enacted paid family leave laws:  California, New Jersey, Rhode Island, and Washington. Three of those states have implemented paid leave programs as of mid-2016. Washington has not been able to get its program started yet, reportedly due to a lack of provisions for funding in the bill. New Jersey’s program uses a temporary disability insurance program funded by employer and employee contributions. It is available for a variety of situations, including parental leave within 12 months of the child’s birth, for a period of up to six weeks. N.J. Rev. Stat. §§ 43:21-27(o), 43:21-38.

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barbed wireSexual harassment in the workplace remains a serious problem across the country, but some workplaces tend to present more complicated issues than others. In jails and prisons, for example, the issue of sexual harassment can overlap with the issue of sexual assault, both among inmates and by guards against inmates. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits sexual harassment in the workplace, while the Prison Rape Elimination Act (PREA) of 2003, 42 U.S.C. § 15601 et seq., attempts to address the sexual abuse of inmates. Recent allegations of sexual harassment and assault against a captain at Rikers Island Correctional Center in New York City demonstrate the potential for overlap. The jail facility has seen multiple similar allegations, leading to criminal charges and civil lawsuits.

This issue involves both civil and criminal laws. Title VII allows an aggrieved employee to make a civil claim for damages. Acts that give rise to a Title VII sexual harassment claim, such as unwanted sexual comments or overtures, might not constitute a criminal offense. Unconsented touching, however, could be prosecutable under state criminal law. Sexual assault is a criminal offense under New York law, which specifically states that an inmate of a correctional facility cannot consent to sexual activity with a guard. N.Y. Pen. L. § 130.05(3)(e).

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