Sexual Harassment

February 1, 2021 By Claudia Pollak, Esq.

Sexual Harassment2021-06-14T20:13:23+00:00

White Plains, NY Sexual Harassment Lawyer

Sexual harassment in the workplace has always existed, but the #metoo movement has brought this ugly secret out into the glaring light of day. Apart from the pain and intimidation it causes, sexual harassment is disruptive to the workplace, causing employees to become distracted from the tasks at hand and resulting in a significant loss in productivity. Let’s face it — it’s hard to work effectively when you’re being subjected to embarrassment, humiliation, or unfair treatment at work. If you are experiencing harassment or discrimination in the workplace, sexual harassment lawyer, Claudia Pollak, Esq. can help.

Federal and state laws, including Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law (NYSHRL), make sexual harassment at work illegal in New York. In addition to employees, the New York discrimination laws protect “non-employees” from gender and other forms of discrimination based on sex, including freelancers and independent contractors, subcontractors, vendors, consultants, and certain others providing services in New York.

In addition, federal and state law protects individuals who oppose workplace sexual harassment from retaliation by their employers. This means that workers are protected from termination, demotion, and other adverse employment actions taken as a result of their internal complaint of sexual harassment with their job or filing a complaint against their employer with the courts or a state or federal agency, including the New York State Division of Human Rights or the EEOC.

What is Sexual Harassment?

Sexual harassment is a form of gender discrimination that covers both a hostile work environment and circumstances where a worker is subjected to one or more adverse employment actions because of their refusal to provide sexual favors or refusing sexual advances. In workplace sexual harassment claims , the harasser can be a co-worker, boss, supervisor, company manager or senior executive, or even a client, customer, or vendor.

According to the U.S. Equal Employment Opportunity Commission (EEOC), sexual harassment includes:

• Unwelcome sexual advances
• Requests for sexual favors, with or without quid pro quo implication
• Verbal or physical badgering of a sexual nature
• Distribution of risqué or pornographic images or videos
• Generalized remarks that demean a particular gender or sexual orientation

Sexual harassment can also include generalized remarks, even if not made directly to the offended worker, that demean a particular gender, sexual identity, or sexual orientation. Derogatory comments about men, women, transgender persons, or gay people fall into this category. It is also worth noting that sexual harassment can take place even if the victim and harasser share a gender, sexual identity, or sexual orientation.

What Types of Sexual Harassment Exist in the Workplace?

Sexual harassment typically involves adverse employment actions directed at an employee by a manager which are motivated by sexual attraction — typically following a refusal of sexual advances. These can include unfair or unwarranted disciplinary action, a demotion or pay cut, or wrongful termination. There are two basic types of sexual harassment: “quid pro quo” and “hostile work environment.”

Quid Pro Quo

Literally meaning “this for that,” quid pro quo refers to a situation in which the offender may have superior work status to the victim and makes unwelcome sexual advances (physical or verbal), and/or requests sexual favors, in exchange for a promotion, bonus, or other employment benefits. Similarly, quid pro quo works in reverse if the harasser threatens retaliation if the victim refuses to capitulate to the harasser’s demands. This can include threats or insinuations that an employee will be fired or subjected to a loss of benefits, a demotion, or reassignment of duties because of their refusal to provide sexual favors or engage in sexual activity with the harasser.

Hostile Work Environment

There are many reasons why an employee may experience their workplace as hostile, including that some of their co-workers or managers are rude or impossible to please. While this behavior may make the atmosphere extremely unpleasant, it is not necessarily against the law. To be considered a hostile work environment under the discrimination laws, a manager or co-worker, or sometimes even a client or vendor, engages in gender-based ridicule, intimidation, or unwanted verbal or physical advances. In addition, a hostile work environment is characterized by the use of sexually explicit words, signs, jokes, or pranks that are of a sexual nature, or which are directed at an individual because of their gender.

Factors to consider in analyzing the existence of a hostile work environment based on sex include whether the harassing conduct interferes with the employee’s work performance or makes it more difficult for the employee to perform his or her job. The frequency and severity of the harassing conduct is also pertinent in determining whether the conduct can be characterized as a hostile work environment. This includes the types of verbal statements that are made and how often, and whether the harassment involves physical touching or threats. At a minimum, in order to have a claim under New York law, the conduct must be more than what would be considered “petty slights” or “trivial inconveniences.”

What Are Some Examples of Sexual Harassment?

Some examples of sexually harassing behavior include:

  • unwanted touching, such as touching an employee’s shoulder or back purposely brushing up against an employee when they walk by;
  • jokingly grabbing, pushing or pinching;
  • dissemination of sexually-explicit pictures or videos in the workplace or through email;
  • simulated sexual activities and gestures;
  • requests for sexual favors;
  • repeated unwanted personal phone calls and texts to an employee;
  • sex-based comments and questions, such as sexually-explicit jokes and stories, or personal questions about an employee’s sexual experiences;
  • unwelcome inquiries into an employee’s sexual orientation;
  • requesting sexual favors in exchange for a promotion, raise, or positive performance evaluation; or
  • threats to fire an employee who refuses to comply with a demand for sexual favors.

Retaliation

Employees are protected from retaliation when they report sexual harassment or provide information or otherwise assist in an investigation of a complaint of sexual harassment. It is against the law to subject a worker reporting sexual harassment to any type of adverse employment action because of their complaint. This includes wrongful termination, demotion, disciplinary action, an unwarranted negative performance evaluation, or being frozen out of workplace meetings or other activities. This may also include deliberate sabotage of a person’s work, damage to a workspace, bullying, and name-calling, or other behavior that interferes with the victim’s ability to perform their job.

How Can My Employer Be Held Responsible for Sexual Harassment?

Under federal law, in order to hold an employer responsible for the discriminatory acts of a non-managerial level employee, the employee must prove that the employer is guilty of negligence in supervising the workplace. This can be shown when management has encouraged or condoned the harassing behavior or has failed to promptly investigate and address a complaint of sexual harassment. For this reason, it can be important for victims of sexual harassment to make a formal complaint about the harassment to the HR department or to a company manager as soon as possible, and to carefully document the complaints.

In contrast to the federal law, under New York state law, employers can be held liable for sexual harassment even if the victim of the harassment failed to report the harassment to their employer. While this may mean that a report to HR or a manager is not a prerequisite for a finding of liability against the employer, it is nevertheless a good idea to lodge a formal complaint with the employer’s HR department or a manager about any harassing behavior.

Is Sexual Harassment Prevention Policy and Training Mandatory In New York?

Yes, New York law requires employers to adopt a sexual harassment prevention policy and to conduct annual training that meets certain requirements. The sexual harassment prevention policy must include a complaint form and a procedure for the confidential investigation of complaints. This form should be used to file a complaint with the company about any sexual harassment. If the employer does not have a policy or complaint form in place, the employee should nevertheless file a complaint with the HR department or a company manager about any harassing behavior.

How Do I Document and Report Sexual Harassment?

Employees experiencing sexual harassment at the workplace should immediately report the problem to an ethics hotline if one exists, their manager, the human resources department, or to upper management. Employees should make notations of the time, location, and details of each incident of harassment in order to amass pertinent evidence. It is critical that employees who have been sexually harassed save any texts, emails, chats, pictures, or videos with disturbing content in order to evidence the harassment.

Once an employee reports sexual harassment to the company, whether to a manager, human resources department, or ethics hotline, the company is expected to investigate the complaint and follow the requirements of their sexual harassment policies. Employees should, if possible, take advantage of any preventative or corrective measures proposed by the employer that may help to address or resolve the situation.

If an employee is being targeted for sexual harassment by those in charge, or if his or her complaints do not stop the misconduct, the employee may find it helpful to consult with a White Plains sexual harassment attorney to better understand their rights and to find a solution that will put a stop to the abusive behavior.

Sexual Harassment Lawyer White Plains New York
westchester county employment lawyer

Claudia Pollak

Claudia Pollak, Esq. is an experienced Westchester and NYC-based employment lawyer representing employees facing discrimination, retaliation or wrongful termination because of their race, disability, pregnancy, sexual orientation, gender, or other protected characteristic. She also advises on executive severance agreements and restrictive covenants. Call her at 914-LAW-9111 (914-529-9111) for a free consultation.

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