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Sexual Harassment 2019-09-15T16:26:16-04:00

Sexual Harassment Law in New York

Sexual harassment is a form of sex discrimination.  It is illegal but it still happens every day.   

The Equal Employment Opportunity Commission describes sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . [that] explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”   

If you are being sexually harassed at work, we might be able to help you.   Click here for information about our New York office.

 

According to a 2016 report by the U.S. Equal Employment Opportunity Commission (EEOC), even though anywhere from 25 to 85 percent of women report having experienced some form of sexual harassment at work, most do not file complaints, mainly because of a fear of retaliation. While most sexual harassment studies focus on harassment experienced by women, men also experience it. One survey found that 19 percent of men stated they had received unwanted sexual attention or coercion. See EEOC Report at fn 25.

What is sexual harassment?

Sexual harassment includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity and the status of being transgender.

Sexual harassment is conduct that is both unwelcome and of sexual nature.

Sexual harassment also includes unwelcome conduct that is directed at an individual because of that individual’s sex when:

  1. the conduct has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile or offensive work environment,
  2. the conduct is made either explicitly or implicitly a term or condition of employment, or
  3. submission to or rejection of such conduct is used as the basis for employment decisions.

Sexually harassing conduct may include, but is not limited to, the following:

  • Words, signs, jokes, pranks, intimidation or physical violence
  • Unwanted verbal advances
  • Unwanted physical advances, such as touching, back rubs, pats on the butt, poking, pinching, kissing, hugging, grabbing, or “accidental” brushes against your chest or other parts of your body
  • Rape, sexual battery, molestation or attempts to commit these assaults
  • Making sexually explicit statements or sexually discriminatory remarks
  • Unwanted sexual propositions
  • Discussion of sexual acts
  • An offer of employment or other benefits in exchange for sexual favors
  • A threat to reduce your hours, benefits, rate of pay, or otherwise hurt your conditions of employment if you don’t comply with a sexual request
  • Loss of employment, benefits or other adverse impacts after complaining about harassment
  • Sexually oriented gestures, noises, remarks or comments about a person’s sexuality or sexual experience
  • Someone displaying sexually suggestive objects, pictures, cartoons, graffiti, reading materials or other materials that are sexually demeaning or pornographic in the workplace, or “giving” someone such items
  • Graphic comments, sexually degrading words, sexually suggestive or obscene messages or invitations
  • Hostile actions taken against an individual because of that individual’s sex, sexual orientation, gender identity or status of being transgender
  • Interfering with, destroying or damaging a person’s workstation, tools or equipment, or otherwise interfering with the individual’s ability to perform the job
  • Sabotaging an individual’s work
  • Bullying, yelling, name-calling
  • Impeding or blocking a person’s movements

These behaviors can constitute sexual harassment.   

At the federal level, sexual harassment is prohibited under Title VII of the Civil Rights Act of 1964. This law only applies to employers with 15 or more employees.  At the state level, it is prohibited by the New York Human Rights Law. New York Executive Laws § 296.1. The state law applies to all employers, regardless of how many employees they have. Under both Title VII and the New York Human Rights Law, sexual harassment is considered a form of discrimination in employment.     

In addition, some local governments also enforce laws protecting individuals from sexual harassment and discrimination. Within New York City, for example, the New York City Human Rights Laws are in effect and these municipal laws also protect against sexual harassment.

Both federal and state laws recognize two general types of sexual harassment —

quid pro quo and “hostile work environment.” These kinds of sexual harassment can occur between males and females or between persons of the same sex.

Quid Pro Quo Sexual Harassment

Quid pro quo is a Latin phrase meaning “this for that” or “something for something.”  The phrase captures the idea of an exchange. Thus, quid pro quo harassment occurs when someone conditions your hiring, continued employment, promotion or benefits on your submission to sexual advances or some other kind of sexual conduct.  Quid pro quo harassment can be couched as an offer — or a threat.

Hostile Work Environment Sexual Harassment

“Hostile work environment” sexual harassment occurs when the offending behaviors are so pervasive or severe as to alter the conditions of your employment, unreasonably interfere with your work or create an intimidating, hostile or offensive work environment.  

You can experience a “hostile work environment” even if the behavior is not aimed at you.  Read our page on hostile work environment harassment in New York for more information on that subject.  

The New Law in New York

New legislation was recently passed in New York in response to the #MeToo movement. The new laws were included as part of the New York State 2018 – 2019 budget and were signed into law on April 12, 2018. 2018 Sess. Laws of New York, Ch. 57 (S.7507-C), Part KK. The laws expand protection from sexual harassment to individuals in the workplace who are not employees. They require employers to have sexual harassment prevention policies in place and to provide employee training on an annual basis. They also prohibit certain contractual provisions (mandatory arbitration, confidentiality and nondisclosure), from being used or enforced in employment contracts related to settlement or adjudication of claims related to sexual harassment.

Expanded Protection

It is now an unlawful discriminatory practice for an employer to permit sexual harassment of non-employees in its workplace. These individuals could be contractors, subcontractors, vendors, consultants or the employees of such outside entities. New York Executive Law §296-d. Employers may be held liable to non-employees for sexual harassment when the employer “knew or should have known” it was happening and “failed to take immediate and appropriate corrective action.” The law allows that the “extent of the employer’s control and any other legal responsibility which the employer may have” with respect to the harasser’s conduct shall be considered in determining the employer’s liability in such cases.

Sexual Harassment Policies and Training

The new laws now require all employers to adopt a sexual harassment policy that meets certain minimum requirements.

The sexual harassment prevention policy must:

  • Prohibit sexual harassment consistent with guidance issued by the Department of Labor and the Division of Human Rights
  • Provide examples of prohibited conduct that would constitute unlawful sexual harassment
  • Include information about federal and state laws on sexual harassment, remedies available to victims of sexual harassment and a statement that there may be local laws that also apply
  • Include a complaint form
  • Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties
  • Inform employees of their rights and all available forums available for adjudicating sexual harassment complaints, administratively and judicially
  • Clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue
  • Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

New York State Labor Law §201-g.

Every employer in New York must provide employees with sexual harassment prevention training. Training must be received on an annual basis starting October 9, 2018. This means employers must ensure all employees must complete initial training before October 9, 2019. The training must also be repeated at least once per year.

Training must meet or exceed the following minimum standards:

  • It must be interactive.
  • It must include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights.
  • It must include examples of conduct that would constitute unlawful sexual harassment.
  • It must include information concerning federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment.
  • It must include information concerning employees’ rights of redress and all available forums for adjudicating complaints.
  • It must include information addressing conduct by supervisors and any additional responsibilities for such supervisors.

New York Labor Law §201-g.

As directed by the new law, the New York State Department of Labor and the New York State Division of Human Rights have published a model policy and a model training program. They have also published a model complaint form for use in conjunction with the model policy and training. Use of the model policy, training program, and complaint form are considered compliant with the new law.

Prohibited Contract Provisions

The new laws also include a prohibition against using nondisclosure provisions and confidentiality agreements in connection with causes of action and claims based on sexual harassment. The only exception is when including such a provision is the documented preference of the person who complained of the harassment. Use of a confidentiality or nondisclosure provision may not be made a condition of discontinuing or settling a case that involves sexual harassment. New York General Obligations Law §5-336.

Employers also may not use or rely on mandatory arbitration clauses to resolve allegations of claims of discrimination based on sexual harassment. New York Civil Practice Law and Rules § 5003-b. The only exception to this is where it would be inconsistent with federal law or a collective bargaining agreement to prohibit mandatory arbitration. Id. § 7515(4)(c). Prohibited arbitration clauses are considered null and void and will not be enforced. Id. § 7515(4)(b)(iii)

What remedies are available to victims?

Title VII damages may include:

  • backpay
  • front pay or reinstatement
  • lost benefits
  • compensatory damages (money awarded to compensate the person for their losses)
  • attorneys’ fees
  • prejudgment interest
  • punitive damages (money awarded to punish the wrong-doer) in certain circumstances

In order to receive punitive damages under Title VII, a person must be able to show that the employer acted with malice or reckless indifference to the rights of the victim.

Under federal law, Title VII limits the amount of damages available based on the employer’s size. Employers with fifteen to a hundred employees are not liable for more than $50,000 in damages, while employers with 500 or more employees may face damages up to $300,000.

A complaint must first be filed with the EEOC to bring a Title VII lawsuit. The EEOC will have 180 days to investigate. After that time, the individual may request a “right to sue” letter. A person has only 90 days from the time the “right to sue” letter is issued by the EEOC to bring a claim in federal court.

To bring an action in state court, an individual has three years from the date of the last incident to file a lawsuit. New York does not require that a complaint be filed first with the New York State Division of Human Rights, but if someone does file with the state division prior to filing a legal action in state court, the administrative action must be dismissed before they can bring a judicial action. Once the administrative action is dismissed, the person has only 90 days from the date of dismissal to file in state court. 

In addition to other claims, a victim of sexual harassment may also bring a lawsuit under New York tort laws against the perpetrator of the harassment. Tort claims might include actions for defamation or intentional infliction of emotional distress. Filing one of these torts claims in New York must be done within one year. Torts claims for physical injury must be brought within three years of the injury.

What to do if you are a victim of sexual harassment

DO:

Understand your rights.

Your employer has an affirmative duty to provide a workplace that is free of sexual harassment and to respond to incidents of sexual harassment with immediate and appropriate corrective actions.

Read your employer’s sexual harassment prevention policy.

Employers are required by Section 201-g of the New York State Labor Law to have a policy on sexual harassment and to ensure employees are made aware of the policy. Employers must provide each employee with a written copy of their sexual harassment prevention policy.

Report the incident(s)

Follow the procedures in your employer’s policy as much as possible when reporting an incident of sexual harassment.  Report the incident in writing or follow up with a writing documenting your report. Under the new laws in New York, employers must include a complaint form in their sexual harassment prevention policy. You can use this form to report the incident(s).

When filling out the form, describe the incident in as much detail as you can.  Include details of all incidents if you have experienced more than one. Include the name of the harasser and describe his or her relationship to your own position (supervisor, co-worker, etc.). Be sure to include the names of any witnesses to the incident. If there weren’t witnesses, did you mention what happened to anyone else?  Who did you tell and when? Having a witness or other form of corroboration is incredibly helpful to establish the truth of your claim to those charged with investigating it.

Also mention any previous attempts you may have made to inform management of the conduct and whether or not there was any response to your previous complaint. Describe how the behavior has impacted your ability to perform your job, including any emotional distress or physical symptoms. Describe whether there has been any retaliation as a result of your report of the behavior or request to stop the behavior. 

If you send your complaint by email, request a “delivery” and “read” receipt.  Be sure to keep a copy of your initial complaint and all subsequent communications regarding the complaint.

If reporting the complaint to your employer fails to resolve the problem:

  • Consider filing a complaint with the New York State Division of Human Rights or the U.S. Equal Opportunity Commission (EEOC). If you are within New York City, you may also consider filing a complaint with the NYC Commission on Human Rights.
  • Consider reporting your case to the New York State Office of the Attorney General Civil Rights Bureau. The Civil Rights Bureau will want to determine whether your experiences are part of a pattern or practice of sexual harassment by an employer that affects a significant number of people in the state and may initiate actions against an employer. However, the Office of the Attorney General represents all the people of the state – it does not any individuals. Reporting an incident to the Attorney General will not result in any individual award of damages to victims.
  • Consult an attorney.An employment attorney can help you understand how federal and state law would apply to the specific circumstances of your case.  An attorney also can help you understand your options, file a complaint, determine what is and isn’t relevant, and evaluate whether or not it makes sense to file a lawsuit.  As you weigh alternatives, an attorney can also advise how different courses of action might help or hurt your case.

Think carefully before sharing everything on social media.

Before you decide to share everything on social media, remember that any social media postings relevant to your case can be obtained by an employer or defendant and may be used in attempts to discredit you, cast doubt on your story and/or question the extent of damages you suffered.  

While your private discussions with attorneys and health counselors are confidential, everyday conversations with your friends, family, co-workers and on social media are generally NOT confidential or protected.  Also: if you go around telling everyone what you told your lawyer and what your lawyer told you, those communications can lose the special confidentiality protections they would otherwise have had.

DO NOT:

Destroy or get rid of evidence of the harassing behavior.

Understandably, your first instinct may be to delete, erase or throw away any offensive message, note, text or email.  You should resist that instinct. Those offensive words, images, and texts are evidence that supports your claim and will be important in any investigation or lawsuit that may occur later. Not only should you preserve this type of evidence, you should also take notes about what happened, when it happened, where it happened, and who else might have witnessed the behavior.  Do this as soon after the event as possible.  If you are experiencing recurring incidents of harassment, do this for each incident.  Then, keep your notes in a secure place.  

Fortunately, we live in a time when it is pretty easy to save and preserve evidence.  Taking notes can be as simple as taking a picture of a whiteboard with your phone.

In New York, it is legal for you to record conversations that you participate in.   This means you can record the harasser’s comments that he makes to you.  New York is considered a “one-party consent” state when it comes to recording conversations. New York Penal Law §250.0, 250.05. While many states require that both parties to a conversation must consent to its being recorded, in New York, only one of the parties to the conversation must consent. It is a crime to record or eavesdrop on conversations unless at least one party consents. If you are part of the conversation, you can legally record it. But be careful if you are in another state because the laws for recording conversations vary from state to state.

That said, it has been reported that former Fox News host Gretchen Carlson began recording conversations with Fox News Chief Roger Ailes starting 2014. Amongst the recordings captured was this gem from Ailes: “I think you and I should have had a sexual relationship a long time ago, and then you’d be good and better, and I’d be good and better.” Carlson’s case reportedly settled for $20 million. (Note: Carlson actually filed suit in New Jersey.)

  • Wait too long before you act.

There are time limits for filing complaints with state or federal administrative authorities and for filing lawsuits in court. A complaint with the EEOC must be filed within 300 days from the last date that sexual harassment occurred. Filing a complaint with a state agency must be done within three years from the date of the last harassing act. Any acts that occurred more than three years earlier may be barred from consideration. Once a complaint has been filed with the State Division, a person cannot bring a lawsuit in state court without first obtaining an “administrative convenience” dismissal of the administrative action. After such a dismissal, the person has 90 days to file an action in court.

  • Think retaliation is allowed.

It is illegal under state and federal laws for an employer to retaliate against you for reporting sexual harassment, filing a claim, or making a complaint about sexual harassment. It is also illegal for employers to retaliate against someone for participating in an investigation or lawsuit about a sexual harassment claim. If you complain about harassment and your employer retaliates against you for complaining, that is itself unlawful and will subject your employer to liability. Retaliation generally means taking some sort of action that adversely affects your conditions of employment. It may be seen in such aspects of employment as promotion, hiring, firing, benefits, job assignments, or training.

  • Assume you are the only victim of the perpetrator’s behavior.

To be considered harassment, the behavior must be severe and/or pervasive. Behavior you perceive as only mildly rude could be highly offensive to someone else. This is why, legally, the behavior must be both objectively and subjectively offensive to be deemed harassment. While you may experience some conduct as merely stupid and annoying, but not harassing, and therefore not want to report anything on your own behalf, keep in mind that the person’s actions could be impacting other people more negatively.  

  • Spend too much time worrying whether you are just “too sensitive” or “can’t take a joke.”

It is quite common for perpetrators of sexual harassment to claim it was all “just a joke.” And in some cases, it may truly be that the perpetrator’s sole intent was just to be funny.  But it is not just the perpetrator’s intent that matters — it is how a reasonable person would react to the behavior and the impact of that behavior on the victim that determines whether or not the conduct is sexual harassment. And even if the offensive behavior ends up being deemed too mild to count legally as sexual harassment in the final analysis, if it is making you uncomfortable, you have a right to say so without fear of retaliation.   

  • Confuse sexual assault and sexual harassment.

If you have been forced through violence, coercion or incapacitation into involuntary sexual contact or sexual acts, this is more than sexual harassment. It is sexual assault, and it is a crime under New York Penal Law §130.

Significant New York Sexual Harassment Verdicts and Settlements

Fox News program host Bill O’Reilly has been reported by the New York Times as having settled at least six different sexual harassment cases since 2002. The latest agreement was reached in 2017 to settle allegations made by Lis Weihl, a legal analyst at Fox News, covering 15 years of claims for $32 million. Mr. O’Reilly’s settlements for sexual harassment reportedly total around $45 million.

Also widely reported recently was the case of Gretchen Carlson brought against Fox News Chairman and CEO Roger Ailes. (The case was filed in New Jersey but alleged violations of the New York City Human Rights Law.) Carlson settled the case for $20 million after sparking many other allegations against Roger Ailes and Fox News, including by show host Megyn Kelly. Her case ultimately resulted in Ailes’ resignation in July 2016 and a public apology from Fox in September 2016.

Mayo-Coleman v. American Sugar Holdings, Inc. was a U.S. District Court case brought in the Southern District of New York, alleging a hostile work environment in violation of Title VII and the New York State Human Rights Law, a jury awarded the Plaintiff $1.7 million in compensatory damages and $11.7 million in punitive damages. Because punitive damages are not available under state law, however, and because Title VII damages are capped at $300,000, the court later allocated $1 of the compensatory damages to the Title VII claim and reduced the punitive damages award to $299,999 under Title VII. The court also reduced the compensatory damages to $500,000 under the state law finding that more than that would have been excessive. This resulted in the plaintiff ultimately being awarded a total of $800,000 in damages.

Toward the end of 2007, Anucha Browne Sanders settled a claim for sexual harassment against Madison Square Garden and Isiah Thomas for $11.5 million, including $4 million in attorneys’ fees, according to the New York Times. A jury had just awarded her $11.6 million in punitive damages alone and she had been seeking an additional $9.6 million in compensatory damages. Sanders accused Knicks head coach Isiah Thomas accused of verbally abusing her, calling her “bitch” and “ho” to her face, and making unwanted advances. Ms. Sanders was fired after complaining about this behavior, giving rise to her claims of retaliation.

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