Phillips & Associates
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Phillips & Associates
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Discrimination on the basis of pregnancy is a serious problem in workplaces all over the country. New York City pregnancy discrimination attorneys help workers who lost their jobs, been demoted, or were placed on unpaid leave when their employers learned that they were pregnant, to name only a few examples of how this type of discrimination can occur. The New York City Human Rights Law (NYCHRL) offers more protections than many anti-discrimination laws. It requires employers to make reasonable accommodations for pregnant employees and employees who have recently given birth. The New York City Commission on Human Rights (NYCCHR) is responsible for enforcing city law, either by bringing actions directly against employers or by authorizing employees to file their own lawsuits. Earlier this year, the NYCCHR announced that it had settled a pregnancy discrimination claim involving reasonable accommodations. The settlement included more than $46,000 in civil penalties and damages for the employee.

At the federal level, the Pregnancy Discrimination Act of 1978 added discrimination based on “pregnancy, childbirth, or related medical conditions” to the definition of sex discrimination found in Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e(k). Federal law is less clear, however, on the issue of reasonable accommodations for pregnancy and childbirth. Many people need adjustments to their work schedule, work environment, or job duties during pregnancy or after giving birth. This may include additional breaks for water or to use the restroom, additional time to sit down, or temporary restrictions on lifting heavy objects. After giving birth, workers who are breastfeeding might need time and a private location to express milk. The NYCHRL requires employers to make reasonable accommodations for these needs. N.Y.C. Admin. Code § 8-107(22).

The employee in the case mentioned above worked as a line cook at a restaurant in New York City. In early 2016, she reportedly notified her supervisors about her pregnancy and told them that she could not lift heavy boxes due to medical restrictions. According to the NYCCHR, the employer refused to accommodate her for the lifting restriction unless she provided medical documentation. The NYCCHR states that this violates city law. The employee filed a complaint with the agency, which launched an investigation of the employer.

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The COVID-19 pandemic is now in its second wave in New York and much of the rest of the country, which has not come close to recovering from the economic impact of the first wave. Earlier this year, New York State established a system of paid sick leave for people who must quarantine because of a COVID-19 diagnosis or possible exposure to the disease. Employers must allow employees to take time off, whether paid or unpaid, under state law in order to go into quarantine. They must allow employees to return to their jobs when their quarantine ends. Despite these precautions and protections, many workers are still experiencing difficulties with their employers. New York City employment attorneys can help people understand their rights in these unusual times, and the state has set up a system for employment complaints related to COVID-19.

New York City and State Employment Laws

The New York City Human Rights Law (NYCHRL) protects workers with caregiving responsibilities from discrimination by their employers. This applies to people who must care for a minor child, or for a family member or someone living in their home who “relies on [them] for medical care or to meet the needs of daily living.” N.Y.C. Admin. Code § 8-102(2). This means that an employer cannot terminate an employee because of their caregiving obligation, nor may they demote them or deny them employment opportunities like promotions because of these responsibilities.

New York City law does not, however, specifically require employers to accommodate an employee’s caregiver duties, such as by allowing them to take additional time off from work. The NYCHRL and the New York State Human Rights Law (NYSHRL) specifically require reasonable accommodations for disability, pregnancy, childbirth, and conditions related to pregnancy or childbirth, but not caregiver status. Id. at §§ 8-107(15), (22); N.Y. Exec. L. § 296(3). “Disability,” as defined by these statutes, may include certain health conditions that put people at additional risk of complications from COVID-19.

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There are two sides to every story, as the saying goes. This is not usually true in the real world, but legal disputes are not like the real world. There are two sides in a lawsuit, each telling a different story. A plaintiff alleging sexual harassment will tell a story about misconduct in the workplace. The defendant’s story might include a denial that those events actually happened. At Phillips & Associates, our attorneys’ concern is making certain that our clients’ stories have evidence behind them. Asserting a claim for sexual harassment without enough evidence could result in the dismissal of one’s claims. It could also lead to liability for defamation, although this is a difficult claim to prove. A New York City federal court recently dismissed a defamation lawsuit filed by a former hedge fund manager accused of sexual harassment. The lawsuit targeted an online publication, not any of his accusers, but it illustrates how these two areas of law often intersect.

Employment statutes like the New York City Human Rights Law (NYCHRL) prohibit discrimination on the basis of sex, including sexual harassment. A sexual harassment complaint filed in court must include enough factual allegations to support a claim under the NYCHRL or another antidiscrimination law. The plaintiff will have the opportunity to tell their story as the case progresses, and the defendant will be able to present their version of events.

“Defamation” is a broad legal term that covers spoken false statements (slander) and written false statements (libel). Courts in the U.S. set a high bar for anyone alleging defamation. A defamation claim in New York requires proof, among other elements, that the statement in question was false and that it was made without any sort of legal privilege.

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The impact of workplace sexual harassment can go far beyond the employees who endure the harassment and the employers that perpetrate or tolerate it. New York City sexual harassment attorneys focus their efforts on helping the workers who are most directly affected, but others may also have legal rights and remedies. Several recent lawsuit settlements in New York City and elsewhere demonstrate shareholders’ ability to hold corporate officers and directors accountable for permitting cultures of sexual harassment. A shareholder derivative lawsuit filed in a New York City federal court resulted in a settlement earlier this year. More recently, a major tech company settled multiple shareholder lawsuits in a California court.

Individual employees in New York City can bring claims for sexual harassment by filing a charge with an agency like the New York City Division of Human Rights or the Equal Employment Opportunity Commission. They may then be able to file suit in state or federal court. Very few lawsuits go all the way to trial. In most cases, the plaintiff and defendant reach a settlement agreement. This type of agreement rarely, if ever, includes an admission of liability by the employer. It might include a clause prohibiting the plaintiff from speaking publicly about the case and the underlying allegations. The plaintiff has obtained some relief, in the form of compensation, but it might not always feel like “justice.” Shareholders can, at times, obtain legal outcomes that are not available to current or former employees.

Section 626 of the New York Business Corporations Law allows shareholders to file suit on behalf of the corporation in certain situations. A shareholder derivative lawsuit is only possible when a corporation has failed to pursue a valid legal claim. New York law requires a plaintiff to “set forth with particularity the[ir] efforts…to secure the initiation of such action by the board or the reasons for not making such effort.” If the plaintiff succeeds in obtaining a settlement or judgment, all proceeds go to the corporation after reimbursement of the plaintiff’s expenses.

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Restaurants are regularly the site of unlawful sexual harassment all over the country and the world. New York City sexual harassment attorneys have seen countless scenarios in which managers and supervisors abuse their authority, or fail to rein in the offensive behavior of employees or customers. A lawsuit filed in September 2020 in a Manhattan state court alleges that a restaurant manager routinely harassed the plaintiff, who worked as a barista. This behavior persisted for two years, she claims, until the restaurant fired her, allegedly in retaliation for complaining. The complaint names the restaurant, its owner, and the manager as defendants.

Laws at the federal, state, and city level in New York City prohibit workplace discrimination on the basis of sex. This includes sexual harassment in situations where:
– Agreeing to sexual demands is a condition of employment, known as quid pro quo sexual harassment; and
– Unwelcome sexual remarks or behavior in the workplace are severe or pervasive enough that a reasonable person would find it offensive, known as a hostile work environment.

When someone in an executive or managerial position is the alleged harasser, the employer may be vicariously liable for their actions. Otherwise, the employer must have known, or been in a position where they should have known, about the offensive conduct, and they must have failed to make reasonable efforts to resolve the situation.

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Sexual harassment in New York City’s film and television industry has received a great deal of attention in the past few years. That conversation has allowed people from nearly every walk of life to come forward about their own unfortunate experiences. Several recent news reports suggest that the sports world is having its own reckoning. New York City sexual harassment attorneys had a landmark victory about thirteen years ago, in a case involving the city’s professional basketball team. In 2020, allegations have come to light involving a player for the city’s Major League Soccer (MLS) team. Around the country, lawsuits and other claims have arisen in connection with both college and professional football.

Laws that prohibit discrimination on the basis of sex cover sexual harassment in certain situations, such as when unwelcome sexual conduct creates a situation that a reasonable person would find to be a hostile work environment. At the federal level, Title VII of the Civil Rights Act of 1964 protects employees against such behavior, but not everyone working in sports, or many other sectors of the entertainment industry, is an “employee” in a legal sense. Both the New York City Human Rights Law and the New York State Human Rights Law expressly extend their protections to interns. See N.Y. Exec. L. § 296-c, N.Y.C. Admin. Code § 8-107(23).

During the summer of 2020, New York City’s professional soccer team announced that it was opening an investigation into allegations of sexual harassment by a former player. The allegations came from a former intern for the team, who posted them to the social media platform Twitter. She reportedly described how she thought the internship was “the opportunity of a life time” at first, but then alleged that it turned into the player “touching me every f—ing day and my bosses thinking it was great comedic material.” The player issued a statement denying the allegations. It does not appear that the former intern has pursued formal legal action yet.

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Filing a sexual harassment lawsuit requires putting highly unpleasant allegations on paper, and then filing them in the public record. People of all genders have felt able to come forward in the past few years with accounts of sexual harassment in the workplace and elsewhere. Some people bring legal claims, while others tell their stories to the media. A few alleged harassers have responded with legal claims of their own, often focusing on alleged falsehoods in their accusers’ stories. Parties on both sides of New York City sexual harassment claims sometimes bring defamation claims against their opponents. Defamation is a personal injury claim alleging that a defendant made a false statement about the plaintiff that resulted in financial harm. The New York Legislature passed a law this summer that targets defamation lawsuits intended not to recover damages for actual losses, but to silence people by threatening them with expensive litigation. These are often known as “strategic lawsuits against public participation, or “SLAPPs,” and they sometimes appear in response to sexual harassment claims.

A sexual harassment complaint must provide enough information about the alleged behavior to enable the court, the defendant, and others to understand the nature of the plaintiff’s claims. Sexual harassment is a type of sex discrimination under both New York and federal law. A plaintiff must demonstrate that one or more people in the workplace engaged in hostile or harassing behavior based on sex. This may include, for example, unwelcome sexual conduct or remarks that are either pervasive or severe enough that a reasonable person would find that it created a hostile work environment.

A plaintiff’s complaint must set forth the type of behavior that led to their claims. This often includes direct accusations of harassment against one or more individuals. As a case progresses, a plaintiff must continue to gather and present evidence for their claims.

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The restaurant industry presents some of the most egregious examples of workplace sexual harassment in the country. New York City sexual harassment attorneys handle claims arising in nearly every part of the economy, so the problem is not at all limited to that industry. Restaurants seem to present many of the circumstances in which harassment often thrives. Servers may depend on supervisors to assign them good shifts, and then they depend on customers for tip income. Some restaurants foster environments where, even if servers and other employees are not overtly sexualized, sexual banter is tolerated or even encouraged. A lawsuit filed this summer in a New York City state court alleges many of the most egregious situations found in restaurant sexual harassment cases. The plaintiff’s complaint describes ongoing harassment by both employees and customers of the restaurant.

Under laws like the New York State Human Rights Law and Title VII of the Civil Rights Act of 1964, sexual harassment is considered a type of sex discrimination. The law recognizes two broad categories of sexual harassment: hostile work environment and quid pro quo harassment. A hostile work environment claim arises when unwelcome sexual conduct in the workplace is so pervasive or severe that it interferes with someone’s ability to perform their job duties. A single incident can support a hostile work environment claim if it is severe enough, although this is a difficult burden of proof to meet. Most claims alleging a hostile work environment involve ongoing verbal or physical harassment.

Quid pro quo sexual harassment occurs when an employee must give in to some sort of sexual demand as part of their job or in order to obtain a job. In the film and television business, the term “casting couch” refers to the practice of producers or directors giving a role to whoever is most agreeable to such demands. In the restaurant business, it often occurs when a manager or supervisor expects sexual favors in exchange for the best shift assignments or other perks.

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Mandatory arbitration provisions are an increasingly common feature in many kinds of contracts, including employment contracts. Arbitration is a form of alternative dispute resolution that resembles a trial in many ways. It offers certain advantages over litigation, but it is often disadvantageous for employees. New York State law does not allow employers to enforce mandatory arbitration clauses in discrimination claims, including sexual harassment. A New York City court recently denied an employer’s attempt to do exactly this. It rejected the employer’s argument that federal law preempts the New York law. This conflicts with a 2019 decision by a federal judge in the Southern District of New York, which could be an issue in the pending appeal.

Sexual harassment is considered to be a form of unlawful discrimination on the basis of sex in two situations:
1. When acquiescence to sexual demands is a condition of employment, known as quid pro quo sexual harassment; or
2. When unwelcome sexual conduct is so severe or pervasive that it creates a hostile work environment.
In 2018, the New York Legislature enacted a law, codified as § 7515 of the New York Civil Practice Law and Rules, prohibiting “mandatory arbitration to resolve any allegation or claim of discrimination” under the New York State Human Rights Law or other employment antidiscrimination statutes.

The plaintiff in the state court lawsuit filed suit in April 2019 for sexual harassment and retaliation under state and city law. She alleges that the employer, a multinational fashion and luxury goods company, “did everything it could to bury the problem,” and that it tried to “convince [her] that the harassment was just a byproduct of being an attractive woman who works at a company with a French culture, and thus should simply be tolerated.”

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The U.S. Supreme Court’s landmark ruling this summer in Bostock v. Clayton County, Georgia expanded Title VII’s protection against workplace discrimination to include discrimination based on sexual orientation, gender identity, and gender expression. Prior to the court’s ruling, legal protections against employment discrimination on these bases was highly inconsistent at the federal level, particularly with regard to gender identity and gender expression discrimination. New York State and New York City employment discrimination laws specifically mention these categories, but they do not appear in federal law in so many words. The Supreme Court found that Title VII’s prohibition against discrimination “on the basis of sex” necessarily includes gender identity and sexual orientation. The Equal Employment Opportunity Commission (EEOC) issued a new guidance document on “protections for LGBT workers” about two weeks after the court issued its decision. The document is rather concise, but the EEOC provides rather extensive background for the Bostock ruling elsewhere.

The Supreme Court arguably laid the foundation for the part of Bostock addressing gender identity and gender expression discrimination more than thirty years ago. Its 1989 ruling in Price Waterhouse v. Hopkins held that “sex stereotyping” constitutes sex discrimination under Title VII. The court found that the defendant employer denied the plaintiff a promotion in large part because of “her failure to conform to certain gender stereotypes.” It noted that one partner suggested that she “walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.”

In Oncale v. Sundowner Offshore Services, Inc., decided in 1998, the Supreme Court held that sexual harassment among members of the same sex may violate Title VII. Many of the plaintiff’s co-workers harassed him with homophobic slurs. The court ruled that the harassment need not be “motivated by sexual desire” to be actionable under Title VII. The ruling established the possibility of claims for discrimination based on someone’s perceived sexual orientation.

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