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The New York State Legislature passed a bill on June 19, 2019, A8421/S6577, that makes multiple changes to how the New York State Human Rights Law (NYSHRL) handles claims involving sexual harassment and other alleged unlawful employment practices. Section 2 of the bill adds a new provision to the NYSHRL that would effectively eliminate an affirmative defense available to employers, first under federal law and then under New York law, that is quite familiar to New York City sexual harassment attorneys. Employers can avoid liability for hostile work environment when they can establish that the plaintiff did not utilize opportunities provided by the employer to prevent or rectify alleged harassment. It is known as the Faragher/Ellerth defense, after two U.S. Supreme Court decisions issued on the same day: Faragher v. Boca Raton, 524 U.S. 775 (1998); and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

A hostile work environment generally occurs, in violation of antidiscrimination law, when pervasive and unwelcome conduct of a sexual nature substantially interferes with an employee’s ability to perform their job duties. The Faragher/Ellerth defense allows an employer to raise an affirmative defense to liability that consists of two main elements: (1) the employer acted reasonably to prevent and/or remedy sexual harassment in the workplace; and (2) the employee unreasonably failed to make use of opportunities to prevent or address harassment. A third element, sometimes included in the defense, involves a lack of materially adverse action against the employee because of their complaint. If an employer can prove these two or three elements by a preponderance of evidence, they can avoid liability.

Both Faragher and Ellerth involved sexual harassment claims under Title VII of the Civil Rights Act of 1964. Courts have also applied the defense to claims under the NYSHRL. In 2009, a federal court in the Southern District of New York declined to apply the Faragher/Ellerth defense to a case brought under the New York City Human Rights Law (NYCHRL). It certified a question to the New York Court of Appeals, asking whether the Faragher/Ellerth defense was available in NYCHRL cases. New York’s highest court ruled in 2010 that the defense is not available, noting different wording in the NYCHRL compared to other statutes.
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Silvia Stanciu is an employment litigation attorney at Phillips & Associates. Recently, Super Lawyers, an attorney rating service that names top practitioners in each state in numerous practice areas, named Ms. Stanciu a Rising Star in New York. Additionally, Super Lawyers asked Ms. Stanciu to address whether a person working in New York can sue his or her employer for sexual harassment by a coworker.

What is Considered Sexual Harassment?

Ms. Stanciu advised that any unwelcome behavior or comments of a sexual nature in the workplace may constitute sexual harassment. Typically, sexual harassment is quid pro quo or creates a hostile work environment. Quid pro quo harassment is transactional. In other words, the harasser pressures his or her victim into engaging in sexual conduct in exchange for a raise or promotion. Thus, the victim’s employment status is affected by his or her willingness to submit to sexual activity with a coworker.

Conversely, Ms. Stanciu explained, sexual harassment creates a hostile work environment when unwelcome sexual conduct or comments inhibits a person’s ability to do his or her job.  There are numerous laws that allow people to pursue claims against an employer due to a hostile work environment. Under the federal statute, the victim must show that the harassing behavior is pervasive or severe in order to prove it created a hostile work environment. Common examples of conduct that constitutes sexual harassment include sexual texts, emails, and comments, viewing or sharing pornography, and remarks regarding a person’s appearance or body.

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In honor of Pride Month, Lawyer Monthly magazine recently spoke with the managing partner of Phillips & Associates, William Phillips, and Steven Fingerhut, an associate with Phillips & Associates, to discuss the protections afforded members of the LGBT+ community at work. Phillips & Associates is a New York City employment discrimination law firm that solely represents plaintiffs in employment law claims.

Laws Prohibiting Discrimination Against LGBT+ People

The protection afforded members of the LGBT+ community from discrimination in the workplace depends in large part on where they work. While Title VII of the Civil Rights Act of 1964 (Title VII), a federal law, prohibits sex-based discrimination, it does not provide any explicit protection for discrimination based on sexual orientation or gender identity.  Members of the LGBT+ community have nonetheless been successful in pursuing Title VII claims against employers due to discrimination based on their gender identity and sexual orientation, by asserting it is discrimination based on sex.

Conversely, the New York City Human Rights Law (NYCHRL) expressly protects employees from discrimination based on their sexual orientation or gender identity. As such, LGBT+ employees who work in New York City and who were discriminated against based gender identity and sexual orientation may be able to pursue claims under the NYCHRL.

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Erica Shnayder is an employment discrimination litigation attorney at Phillips & Associates. Ms. Shnayder focuses her practice on assisting individuals in protecting their rights in the workplace. Due to her tireless advocacy, Super Lawyers, a service that names top practitioners in each state in multiple practice areas, recently named Ms. Shnayder a Rising Star in the field of employment litigation. Super Lawyers routinely asks knowledgeable attorneys to address pressing issues in their fields. Super Lawyers recently asked Ms. Shnayder responded to answer whether a New York employee can sue his or her employer for sexual harassment.

How Victims of Sexual Harassment Can Protect Their Rights

Ms. Shnayder stated that while people who work in New York have the right to pursue sexual harassment claims against their employers, there are steps they must take to preserve their rights. First, it is essential for anyone alleging he or she was the victim of sexual harassment to prove that the offensive conduct was unwelcome. In many cases, however, the harasser will attempt to argue that he or she was unaware that his or her sexual remarks or conduct was unwanted. Thus, if you are the victim of sexual harassment in the workplace, confronting your harasser and advising him or her in clear terms that his or her conduct is uninvited and inappropriate can help to establish liability going forward. Ms. Shnayder advised, however, that you should not confront your harasser if you cannot do so safely.

Filing a Claim with the EEOC

Ms. Shnayder stated that if you are unable to confront your harasser or if the sexual harassment continues after you confront your harasser you should notify your supervisor or other upper-level management, or your company’s human resources department of the harassment. Additionally, if your company has defined procedures as to how sexual harassment claims should be reported and handled, you should follow the procedure. If reporting the sexual harassment within your company fails to halt the harassment, you can then file a claim with the Equal Employment Opportunity Commission (EEOC), which is a federal agency that enforces civil rights laws, which includes anti-harassment laws, in places of work throughout the country.

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Siobhan Klassen is an employment attorney at the New York City office of Phillips & Associates. Super Lawyers, a rating services that names top attorneys in numerous practice areas in every state, deemed Ms. Klassen a Rising Star in New York in 2017 and 2018. Super Lawyers regularly asks Rising Stars to address issues of public interest and recently asked Ms. Klassen to address whether a person can pursue a wrongful termination claim against his or her employer in New York.

Grounds for a Wrongful Termination Claim in New York

Although in many cases a terminated employee will have no grounds to file a wrongful termination claim against his or her employer, if the employee can prove particular factors lead to his or her termination, he or she may have a valid wrongful termination claim. In sum, wrongful termination happens whenever an employer fires an employee illegally. Examples of illegal grounds for terminating an employee include retaliation and discrimination.

Ms. Klassen clarified that most individuals are at-will employees, which means they can be terminated at any time, whether or not there is a reason for their termination, providing the purported reason for the termination is not illegal. If a person is terminated for exercising his or her legal rights at work or for a discriminatory reason, it may be considered wrongful termination, however.

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Brittany Stevens is an employment litigation attorney at Phillips & Associates who handles a variety of cases, including sexual harassment claims.  Ms. Stevens was recently identified as a Rising Star by Super Lawyers, a service that names the top attorneys in various practice areas in each state. Additionally, Ms. Stevens recently advised Super Lawyers as to what steps a person facing sexual harassment from his or her boss should take.

Sexual Harassment Defined

Sexual harassment is any conduct or behavior of a sexual nature that is unwelcome and that creates a hostile work environment or negatively affects a person’s employment. Sexual harassment can affect employees of every status, regardless of their age, race, gender, or sexual orientation.  Additionally, sexual harassment is considered discrimination. Thus, it is prohibited under local, state, and federal anti-discrimination laws.

Ms. Stevens stated that there are numerous types of conduct that may be considered sexual harassment, including your supervisor or boss touching you without your permission, sending you texts, images, or emails of a sexual nature, or requesting sexual favors.  Moreover, unwelcome remarks regarding your appearance or body, inquiries into your sexual history, and viewing pornographic materials at work may also constitute sexual harassment. Additionally, if you are denied a promotion or raise because you refused your boss’s sexual advances, it may also constitute sexual harassment.

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Gregory Kirschenbaum is an associate at Phillips & Associates practicing in the field of employment discrimination. Mr. Kirschenbaum has been named a Rising Star by Super Lawyers, a rating service that identifies top attorneys in each practice area, on numerous occasions. Mr. Kirschenbaum recently answered the question of whether an individual can seek damages from New York City for wrongful termination for Super Lawyers.

Nature of Employment

Most people who work for New York City, Mr. Kirschenbaum clarified, are “at-will” employees. An employee is “at-will” if either the employee or the employer can terminate the relationship at any time, regardless of whether there is a valid reason for ending the relationship. Employees who work for the City of New York pursuant to a contract, however, cannot be terminated unless it is permissible under the provisions of the contract. Typically, the City must prove that you failed to comply with the terms of the contract in some way, or that the contractual period ended so the contract no longer applies.

Claims for Discrimination and Retaliation

Mr. Kirschenbaum noted that although employers can terminate at-will employees for almost any reason, they are prohibited from firing employees due to a discriminatory bias. Rather, numerous laws, including the New York City Human Rights Law, the New York State Human Rights Law, and Title VII of the Civil Rights Act of 1964, prohibit employers from terminating employees based on their membership in a protected class. The specific classes protected depend on the terms of the precise law in question, but each law prohibits termination based on a person’s age, race, religion, disability, or sex. Employees are also protected from retaliation from their employer for reporting illegal or unethical activity or filing a discrimination or harassment claim. Additionally, New York City employees who report illegal activity in the workplace may be afforded protection under the New York City Service Law. Continue reading

An important limitation on employees’ rights under various antidiscrimination statutes is how each statute defines “employer.” Most laws set a minimum threshold of number of employees. Employers with fewer employees than that number are not considered “employers” within the meaning of that statute. In practice, this means that employees of small employers are not eligible for those laws’ protection against workplace discrimination, sexual harassment, and other unlawful practices. A new law passed by the New York Legislature, which the Governor is expected to sign, will expand the coverage of the New York State Human Rights Law (NYSHRL) to almost all employers in the state. The Legislature previously amended the NYSHRL to eliminate the minimum employee count for claims involving alleged sexual harassment. The new bill, A8421/S6577, as amended by S6594, makes the full range of the NYSHRL’s provisions applicable to employers of all sizes.

Title VII of the Civil Rights Act of 1964 defines an “employer” as a person who employs at least fifteen people for at least twenty weeks in the current, or the most recent, calendar year. 42 U.S.C. § 2000e(b). The federal government, its agencies, and any corporation wholly-owned by the federal government are not considered “employers” under Title VII. Indian tribes and the government of the District of Columbia are also exempt from Title VII’s definition.

The New York City Human Rights Law (NYCHRL) defines an “employer” as any person with four or more employees. N.Y.C. Admin. Code § 8-102. Much like the NYSHRL prior to the new amendments, the statute makes an exception in cases involving alleged sexual harassment. The NYCHRL also provides that individuals who are employed as independent contractors count towards the employer’s employee count, as long as they do not employ anyone themselves.
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Marjorie Mesidor is a partner at Phillips & Associates who focuses her practice on the representation of individuals in employment discrimination lawsuits. Ms. Mesidor has been deemed a Rising Star and a Top Woman Attorney by Super Lawyers, a rating service that recognizes outstanding attorneys, on numerous occasions. Ms. Mesidor recently advised Super Lawyers as to the rights the law affords a pregnant woman working in New York.

Pregnancy Discrimination Act

It is an unfortunate fact that many women face discrimination in the workplace due to pregnancy. As Ms. Mesidor indicated, however, the federal Pregnancy Discrimination Act (PDA) protects pregnant women from discriminatory acts in the workplace. Thus, if you are pregnant, your employer is not permitted to deal with you differently than other employees simply because you are pregnant. Notably, the PDA is only applicable in cases where the employer has at least fifteen employees. There are additional state and local laws that afford protection from discrimination to pregnant workers as well, however. Ms. Mesidor noted some examples of discrimination pregnant women experience in the workplace include reduced pay, a reduction in duties or denial of a promotion, being reassigned to another position, and termination.

Accommodations for Health Issues that Arise During Pregnancy

Many women experience complications or other health issues during pregnancy, that require them to work a modified schedule. As Ms. Mesidor noted, under both state and federal disability laws, pregnancy is a short-term disability. As such, pregnant women can request reasonable accommodations during their pregnancies, and in many cases, the employer is required to provide such accommodations. Examples of accommodations generally requested due to pregnancy include lighter duty and shorter or adjusted hours. If you are pregnant and your request for a reasonable accommodation from your employer was denied, you may have grounds to pursue a discrimination claim against your employer.

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Steven Fingerhut, an employment litigation associate at Phillips & Associates, recently offered advice to Super Lawyers as to how a person can tell if he or she has grounds to pursue a New York disability discrimination claim. Mr. Fingerhut was recently named to the New York Rising Stars by Super Lawyers, which is an honor reserved for the top attorneys in a practice area in each state.

Laws Protecting Workers with Disabilities

Mr. Fingerhut noted that local, state, and federal laws prohibit employers from discriminating against people with disabilities. For example, the New York State Human Rights Law (NYSRHL), the New York City Human Rights Law (NYCHRL), and the Americans with Disabilities Act (ADA), all protect people from disability-based workplace discrimination. In New York, to recover damages for a disability discrimination claim, you must prove that you meet the elements of a claim as defined by one of the anti-discrimination laws.

While each of the aforementioned laws prohibits discrimination against an individual with a disability, they all have a unique definition of what constitutes a disability. For instance, the ADA defines a disability as a physical, medical, or mental impairment that inhibits a person in performing a major activity of daily life. Some actions that are considered major activities of daily life are hearing, seeking, and walking. Additionally, a person is not only considered disabled for purposes of the ADA if he or she actually has a disability, but also if he or she is believed to have a substantial or permanent mental or physical impairment, regardless of whether the person actually has the impairment.

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