Employment anti-discrimination laws all over the country prohibit sexual harassment, treating it as a type of sex discrimination. New York City workers are protected by federal, state, and municipal laws addressing sexual harassment. For many aggrieved workers, the actual harassment is not the only problem they must face. A substantial number of people who have reported alleged sexual harassment in the workplace have faced retaliation by their employers, ranging from reduced hours to termination. Many people hesitate to come forward about harassment because they fear losing their jobs. The recent media attention to sexual harassment in the Hollywood movie business has illustrated this issue, with many people waiting years to come forward, partly out of fear for their careers. Anti-discrimination laws like Title VII of the Civil Rights Act of 1964 address this concern by making retaliation a separate “unlawful employment practice.” In addition to legal claims for sexual harassment, people can also assert claims and recover damages for retaliation.
The Equal Employment Opportunity Commission (EEOC) defines workplace sexual harassment in two general ways: requests or demands for some form of sexual activity as a condition of employment or better employment conditions, or with a threat of adverse employment consequences; and pervasive conduct of a sexual nature that renders the work environment hostile. The alleged harasser’s conduct may range from “unwelcome” sexual comments, jokes, or overtures to nonconsensual touching or sexual assault. A complainant must be able to establish that the conduct was “unwelcome” and that the alleged harasser knew or should have known as much. The EEOC has stated that “a complaint or protest” against the alleged harasser can prove the “unwelcome” nature of the conduct, but some individuals might not complain or protest for fear of repercussions. This is where Title VII’s provisions on retaliation come into play.
A guidance document issued by the EEOC in August 2016 addresses retaliation claims under Title VII. Employers may not retaliate against employees who privately oppose actions they find harassing or otherwise unlawful, for complaining of such conduct to a company human resources officer, nor for complaining to the EEOC or a comparable city or state agency. In the context of sexual harassment, the EEOC offers an example of an employee who tells a supervisor “leave me alone” and “stop it” in response to the supervisor’s “repeated sexual comments.” The EEOC defines “retaliation” as any “materially adverse action” taken against the employee, which “might well deter a reasonable employee from complaining about discrimination.”
The recent media coverage of sexual harassment in Hollywood demonstrates some of the difficulties of retaliation claims. A complainant must establish a causal connection between their complaint or opposition and the alleged retaliation. This can be very tricky, since people who engage in harassment often attempt to create plausible deniability for themselves. In Hollywood, for example, a producer or director might claim that they did not cast a particular individual because they were not right for the part, rather than because of any sexual harassment allegations. Careful documentation, both of incidents of harassment and of subsequent complaints, can help establish a retaliation claim.
The experienced and skilled retaliation attorneys at Phillips & Associates fight for the rights of New York City job applicants, employees, and former employees. We help our clients assert claims for sexual harassment, retaliation, and other unlawful workplace practices. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to see how we can help you.
More Blog Posts:
Unwelcome Touching of a Sexual Nature Constitutes Sexual Harassment in New York, and It Is Also a Crime, New York Employment Attorney Blog, October 31, 2017
The Casting Couch Is Not Consensual: How a Coerced Sexual Relationship Constitutes Sexual Harassment Under New York Law, New York Employment Attorney Blog, October 30, 2017
In New York City, Sexual Harassment Isn’t Just in the Movies, or the Movie Business, New York Employment Attorney Blog, October 27, 2017