NY Hostile Work Environment: A Guide for Employees 2018-10-18T21:08:30+00:00

NY Hostile Work Environment Guide

Part One

What is a NY hostile work environment?

Part Two

What to do if you are subject to a NY hostile work environment

Part Three

Remedies available for hostile work environment

Part Four

What have victims of hostile work environments recovered?

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What is a NY Hostile Work Environment?

The term NY hostile work environment refers to a form of discriminatory harassment in the workplace that is prohibited under federal, state and some local laws.  The federal laws that prohibit a hostile work environment include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1990.

New York State Human Rights Laws prohibit hostile work environment harassment at the state level.  In addition, New York City’s Human Rights Laws also prohibit this type of harassment.

This type of discriminatory harassment may include unwelcome conduct that is based on race, color, religion, sex (including pregnancy), ethnicity, national origin, age (40 or older), disability or genetic information.

A NY hostile work environment claim is sometimes part of a claim for sexual harassment.  However, sexual harassment is not the only type of discrimination that may create a hostile work environment claim.

Discriminatory harassment is unlawful when:

  • enduring the offensive conduct becomes a condition of continued employment,

or

  • the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive (referred to in short-hand as a hostile work environment).

Generally, isolated incidents do not rise to the level of creating a hostile work environment unless the incident is very serious.  Brennan v. Metro. Opera Ass’n, Inc., 192 F.3d 310, 381 (2nd Cir. 1999).  A hostile work environment claim is usually based on the cumulative effect of a series of acts that work together to negatively impact a person’s terms and conditions of employment.

Offensive conduct includes, but is not limited to, offensive jokes, slurs, epithets or name calling, physical threats or assaults, intimidation, mockery, insults, put-downs, display of offensive objects or pictures and interference with work performance.

There are two elements that must be proven in a NY hostile work environment case:

  1. The workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of the victim’s work environment; and
  2. That a specific basis exists for imputing the conduct creating the hostile work environment to the employer.

Petrosino v. Bell Atlantic, 385 F.3d 210, 221 (2nd Cir. 2004).

In determining whether the conduct at issue is sufficiently severe or pervasive, courts will look to the totality of the circumstances.  Alfano v. Costello, 294 F.3d 365, (2nd Cir. 2002).  Relevant factors will be:

  1. The frequency of the discriminatory conduct;
  2. Its severity;
  3. Whether it is physically threatening or humiliating or a mere offensive utterance; and
  4. Whether it unreasonably interferes with an employee’s work performance; and
  5. The effect on the employee’s psychological well-being.

Harris v. Forklift Systems, Inc. 510 U.S. 17 at 23 (S. Ct. 1993).

In determining whether there is a basis for imputing the NY hostile work environment to the employer, courts look to the relative status of the victim versus the harasser.  Vance v. Ball State Univ., 133 S.Ct. 2434 (2013).

If the harassing employee is a co-worker, the employer would only be liable when the employer was negligent in its control of the working conditions.  Negligent means the employer failed to use reasonable care to avoid causing injury.

Where the harasser is a supervisor, though, the employer is strictly liable if the harassment culminates in a tangible employment action.  Strict liability means the employer is legally accountable for the conduct regardless of whether or not it was negligent.

Where the harasser is a supervisor, though, the employer is strictly liable if the harassment culminates in a tangible employment action.  Strict liability means the employer is legally accountable for the conduct regardless of whether or not it was negligent.

A supervisor in this context means anyone empowered by the employer to take tangible employment actions against the victim.

A tangible employment action means an actual change that has an adverse impact on the job or the working conditions of the employee.  Tangible employment actions include things like firing, demotion or suspension.

Note however that under the New York City Human Rights Laws, the above affirmative defense (that the employer took reasonable care and the plaintiff did not avail him or herself of corrective opportunities) is not available to employers.


What to do if you are Subject to a NY Hostile Work Environment

Do not just ignore it and hope it will go away.  There are time limitations for seeking redress and you need to act promptly to protect your rights and file a complaint or lawsuit.

One of the most important things you can do if you are in a NY hostile work environment is to collect evidence showing that the environment is hostile.  You will also want to report your concerns to your employer.  If you are fortunate, your employer will take corrective action on your concerns.  If your employer doesn’t take any action, however, you will still want to be able to show, should you choose to file a claim later, that you made the employer aware of the issue.

Most NY hostile work environment claims will require a showing that the offensive conduct is severe or pervasive.  While there have been some successful cases based on just one particularly egregious incident, most cases will require complainants to show that there have been more than just one or two incidents.

This means you should take notes about each incident as promptly after it happens as possible.  Include the date, time and as detailed a description of the event as possible.  Be sure to include the names of everyone who was either involved or witnessing the incident.  If there is a sympathetic witness to an oral threat, slur, joke or derogatory comment, ask the witness to document what they saw.  This can be done by having them describe what they saw in an email and then sending that email to you or a supervisor.  If there is physical evidence, such as a text, note or email, keep it.  If someone writes something offensive on a whiteboard, take a picture with your phone.  Remember to keep your notes and any other evidence physically secure.

You should also review any relevant policies or training your employer might have available regarding discrimination in the workplace.  If there is a process outlined in a policy for making a complaint or report, follow that process.  Keep a copy of any complaints that you submit in written form and take notes regarding any complaints made over the phone or in person.

Not only should you document the incidents that are creating a NY hostile work environment, you should also document the impacts that the environment is having on you, your health, and your job performance.  Keep any medical records that show you sought medical or mental health assistance around the time the harassment occurred.

You can file a complaint regarding a NY hostile work environment with the Equal Employment Opportunity Commission.  In general, a complaint with the EEOC for discrimination in the State of New York must be filed within 300 calendar days of the date the discrimination took place.  (Note however that employees of federal agencies have a different complaint process).

You can also file a complaint with the New York Division of Human Rights.  The Division will check that it has jurisdiction over your case.  If the Division does have jurisdiction, they will investigate.  They complete most investigations within 180 days.  Once the investigation is complete, the Division may find that there is probable cause that an act of discrimination has occurred.  If they do find this, your case will receive a public hearing.  If the Division of Human Rights finds it does not have jurisdiction or that there is not probable cause, the matter will be dismissed.  If it is dismissed, you then have 60 days to appeal that dismissal with the State Supreme Court.

If you are being discriminated against on the basis of race, sex, age, religion, or disability, through a hostile work environment, you may want to consult an employment discrimination attorney to help you understand your rights and advise you on your options for filing a complaint or lawsuit.


Remedies available for NY Hostile Work Environment

Remedies for a NY hostile work environment under Title VII may include compensatory and punitive damages, as well as attorneys’ fees and costs.

Compensatory damages are intended to put the victim in the same position or nearly the same position as he or she would have been in had the discrimination never occurred.  These kinds of damages include back pay, benefits, medical expenses, pain and suffering, and sometimes front pay or reinstatement.

Punitive damages under Title VII are available if the plaintiff can show there was intentional discrimination based on the person’s race, color, national origin, sex (including pregnancy, gender identity, and sexual orientation), religion, disability or genetic information, and that the conduct was especially malicious or reckless.

In New York, however, all employers, regardless of size, are also subject to the state human rights laws that prohibit discrimination on the basis of race, color, creed, age, sex, national origin, sexual orientation, disability, military status, marital status, and genetic characteristics.

The legal remedies available under New York state law in a hostile work environment case include compensatory damages but not punitive damages.

Under the New York City Human Rights Law, punitive damages are available for discriminatory harassment in the form of a hostile work environment.  The New York City law does not put any cap on the punitive damages that may be awarded.

NY hostile work environment claims filed with New York State’s Division of Human Rights or with the New York City Human Rights Commission must be filed within one year of the date of the discriminatory incident.  Lawsuits filed in state court may be brought for up to three years following the discriminatory incident (assuming you have not already filed a complaint with the EEOC, the State Human Rights Division or the New York City Human Rights Commission).


What have Victims of NY Hostile Work Environments Recovered?

According to some reports, about 10 percent of lawsuits for discrimination or wrongful termination end up settling for $1 million or more, while the “average” out of court settlement for such cases is around $40,000.

In 2012, an African-American steel plant worker won a $25 million jury verdict against his employer ArcelorMittal for the company’s failure to address a hostile work environment that included racial epithets, vandalism, and graffiti directed toward the worker. One of the incidents described by the employee’s complaint was finding a stuffed monkey hanging from a noose in his car. Turley v. ISG Lackawanna Inc. et al., case number 1:06-cv-00794, in the U.S. District Court for the Western District of New York.

Also in 2012, New York City reportedly agreed to pay $750,000 plus attorneys’ fees to Sandra Glaves-Morgan for racial discrimination and retaliation claims she brought against the city’s Human Resources Administration. A jury had awarded Ms. Glaves-Morgan $420,000 in compensatory damages and was contemplating a punitive damages award at the time that the city agreed to settle the case. As chief contracts officer, Ms. Glaves-Morgan had complained about what she believed to be preferential treatment in contracts being awarded to vendors whose employees were members of a local union.  She was later demoted and told her salary would be cut by 20% and that she would be relocated.

In 2009, a federal court jury reportedly awarded $580,000 in damages to a woman in her case for NY hostile work environment and unfair termination as an employee of the Central New York Psychiatric Center.


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