Sexual Harassment

Sexual harassment at 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 disrupts the workplace in several ways: by distracting employees from the tasks at hand, by making the maintenance of an all-inclusive collaborative team impossible, and by resulting in emotional distress that keeps the targeted worker from being as productive as they can be. Let’s face it — it’s difficult to work effectively when one is being embarrassed, humiliated, or facing discrimination because of his or her gender.

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 of workers illegal in New York. In addition to employees, the New York discrimination laws protect “non-employees” from gender and other forms of discrimination, including freelancers and independent contractors, subcontractors, vendors, consultants and certain other individuals providing services in New York.

In addition, federal and state law protects individuals who oppose workplace sexual harassment from retaliation by their employer or manager. This means that workers are protected from termination, demotion and other adverse employment actions as a result of filing an internal complaint of sexual harassment with their job or because they have commenced a legal action against their employer with the New York State Division of Human Rights or the courts.

Defining 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 as a result of refusing to provide sexual favors or otherwise refusing sexual advances. It’s important to note that the harasser can be a co-worker, boss, supervisor, or even a client, customer or vendor.

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

• 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 person offended, that demean one 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.

Types of Sexual Harassment

There are two basic types of sexual harassment: quid pro quo and a hostile work environment. Unfair actions taken by a manager or job that are motivated by sexual attraction (typically following a refusal of the manager’s advances), such as unfair disciplinary action, receiving a demotion or being fired, constitute gender-based discrimination. Additionally, a hostile work environment based on gender is a form of discrimination because the hostile work environment is in and of itself the adverse employment action suffered by the employee.

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 benefit. Similarly, quid pro quo works in reverse if the harasser threatens retaliation should the victim not capitulate to their demands. This can include threats or insinuations that an employee will be fired or subjected to a diminution of benefits, a demotion, or reassignment of duties based on a refusal to provide sexual favors.

Hostile Work Environment

There are many reasons why an employee may experience his/her workplace as hostile, including that some of his or her co-workers or members of management are nasty or impossible to please. While this behavior may make the atmosphere extremely unpleasant, it is not against the law. Rather, a hostile work environment based on gender is characterized by ridicule, intimidation, or unwanted verbal or physical advances, as well as the use of sexually explicit words, signs, jokes, and pranks, that are of a sexual nature or which are directed at an individual because of their gender.

Under New York law, a hostile work environment occurs when an employee is subjected to inferior terms, conditions or privileges of employment because of their sex. Factors to consider 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, in addition to the frequency and severity of the harassing conduct. This includes the types of verbal statements that are made and how often, and whether the harassment involves physical touching or threats. However, to be actionable under New York law, the conduct must be seen as more than what a reasonable person experiencing sex discrimination would consider a petty slight or trivial inconvenience. While this is analyzed according to a comparison to a typical victim of sexual harassment, under the New York state discrimination laws workers are not required to prove that they are being treated worse than a particular individual at their job.

Examples of Sexual Harassment

Some examples of the types of acts that are considered to be sexually harassing under New York law include unwanted touching of an employee, such as putting their hands on their shoulder or back, purposely brushing up against them when they walk by, or jokingly grabbing, pushing or pinching them. This may also include dissemination of sexually-explicit pictures or videos at work or through email; simulated sexual activities and gestures; requests for sexual favors; repeated unwanted personal phone calls and texts to the employee; and sex-based comments and questions, such as sex-based jokes and stories, or personal questions about sexual experiences. This also includes unwelcome inquiries into an employee’s sexual orientation. It is also considered sexual harassment when an employee requests sexual favors in exchange for a promotion, raise or a positive performance evaluation. These requests may also come in the form of threats to fire an employee who refuses to comply with a demand for sexual favors.

Retaliation

Employees are protected from reporting incidents of sexual harassment or providing information or otherwise assisting 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 could include being fired, receiving a demotion, being written-up, receiving a negative performance evaluation, or being frozen out of workplace meetings or other activities. This may also include actions such as sabotaging a person’s work, damaging their workspace, bullying and name calling, and otherwise interfering with their ability to perform their job.

Holding the Employer Responsible

Under federal law, in order to hold the employer responsible for the discriminatory acts of a non-managerial level employee, the employee must generally show that the employer is guilty of negligence in supervising the workplace. This is shown when management has encouraged or condoned the harassing behavior, or has failed to immediately 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 to the human resources department or to a company manager as soon as possible, and to carefully document their complaints.

In contrast to the federal law, effective as of October 11, 2019, § 296 of the New York State Human Rights Law has been amended to clarify that a complaint by the victim of the sexual harassment to the employer is not necessarily determinative of whether or not the employer should be held liable for the discriminatory conduct. While this may mean that a report to the employer is not a prerequisite for a finding of liability against the employer, it is nevertheless a good idea to formally complain to the human resources department or upper management about any harassing behavior.

Mandatory Sexual Harassment Prevention Policy and Training

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 the harassment. If the employer does not have a policy or complaint form in place, the employee should nevertheless file a complaint about any harassing behavior.

Documenting and Reporting Sexual Harassment

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

Once an employee reports the 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 also have an obligation to take advantage of any preventative or corrective measures proposed by the employer that may help to fairly 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 an employment attorney to better understand their rights and to find a solution that will put a stop to the abusive behavior.

Claudia Pollak, Esq. is an employment lawyer based in White Plains, NY.