If you are sexually harassed at work, your employer may be liable

Lesley Brovner & Mark Peters
January 20, 2023

Sexual harassment in the workplace is a form of employment discrimination that violates federal, State and local law in New York. Employers are required to take steps to prevent sexual harassment and, if sexual harassment is reported, to take immediate action to address the situation. Moreover, an employee who reports sexual harassment is legally protected against retaliation from her, his or their employer.

Identifying Sexual Harassment

According to the federal Equal Employment Opportunity Commission (EEOC) federal law prohibits the following:

  • It is unlawful to harass a person (a job applicant or employee) because of that person’s sex.
  • Harassment can include, among other things:
    Unwelcome sexual advances;
    Sexually offensive/inappropriate remarks or jokes;
    Displaying pornographic images, sexual graffiti, or offensive illustrations;
    Comments about a person’s gender or sexual preferences;
    Comments generally demeaning to one particular gender.
  • Harassment does not have to be of a sexual nature, and can include offensive remarks about a person’s sex (i.e. it is illegal to harass a woman by making offensive comments about women in general).
  • Both victim and the harasser can be any gender, and the victim and harasser may be the same gender.
  • Although federal law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
  • The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

New York City’s laws provide even greater protection than does federal law.

The City’s harassment laws cover offensive remarks about a coworker’s sex, verbal harassment, and hostile work environments. While federal laws require that harassment be “severe or pervasive,” New York City laws go further, outlawing any sexually hostile behavior or comments that go beyond a “petty slight” or “trivial inconvenience.” Thus, individual comments on a worker’s appearance or sexually suggestive teasing or joking may form a claim under City law.

Quid Pro Quo Harassment

“Quid pro quo” literally means “this for that” in Latin. Quid pro quo sexual harassment occurs when someone in a position of authority (i.e. a manager or supervisor) seeks sexual favors from a worker in return for some type of job benefit — such as a raise, better hours, promotion, etc. — or to avoid some type of detriment, like a pay cut, demotion, poor performance review, firing etc.
The elements of a federal Quid pro quo harassment claim are generally as follows:

  • The victim is an employee (or job applicant) at the offending company.
  • Some form of unwanted harassment occurs conditioned upon job opportunities (i.e. promises of promotion for giving into the harassment or threats of demotion etc. for refusing).
  • The harasser has a position of power over the victim.
  • The victim suffers some form of harm.

In some cases, it is possible to sue both the offending company as well as the specific harasser.

Hostile Work Environment

A hostile work environment is one where a supervisor, manager or coworker, by words or actions negatively impacts another employee’s ability to work. Any employee can be responsible for creating such a hostile work environment.
According to the EEOC, an environment can become hostile under federal law when:

  • There is unwelcome conduct, or harassment, based on race, sex, pregnancy, religion, national origin, age, disability or genetics.
  • The harassment continues and is long lasting.
  • The conduct is severe enough that the environment becomes intimidating, offensive or abusive.

As noted above, the standards under New York City law are somewhat broader.

Offensive conduct may include, but is not limited to: offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:

  • The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, subordinate, or a non-employee.
  • The victim does not have to be the person harassed but can be anyone affected by the offensive conduct.
  • Unlawful harassment may occur without economic injury to, or discharge of, the victim

What To Do After Sexual Harassment in the Workplace

There are a number of steps that you may wish to take if you are the victim of sexual harassment at work. These include:

  • Document everything. Note the date, time and place of the harassment; what happened and whether there were any witnesses to the behavior. Keep copies or take screenshots of any relevant emails, texts, photos or social posts.
  • Tell a trusted friend, relative or coworker about the harassment soon after it occurs and make a note of your conversation.
  • If you feel safe in doing so, tell your harasser to stop. Depending on the conduct, sometimes people do not understand that what they are doing is offensive and objectionable and – again only if you’re comfortable – telling the harasser to stop may work.
  • Report the conduct to Human Resources and document your meeting with Human Resources.
  • Contact an attorney with experience dealing with these issues.

Should I Trust Human Resources?

Many employees who are facing workplace harassment are concerning about filing a formal sexual harassment complaint or reporting the harassment to their employers. They may be hesitant to escalate the situation, they may not trust their company to take appropriate action, or perhaps they fear reprisals from the harasser or coworkers. While these concerns are understandable, one should nevertheless report workplace harassment to one’s HR department. This is because you may be unable to hold the company legally responsible for the harassment if you don’t follow its reporting procedures.
It is also important to note that it is a violation of the New York City, State and Federal law for an employer to take retaliatory action against an employee in a sexual harassment case because the employee opposes or speak out against sexual harassment in the workplace.

When is an Employer Liable for Sexual Harassment

An employer can be held liable for sexual harassment at work under certain circumstances. For example, the employer may be liable for employees being sexually harassed by non-supervisors when the employer knew or should have known about the harassment and failed to take prompt and appropriate corrective action. Additionally, employers may be liable for the misconduct of supervisory employees.

With supervisors, there is no need to have known about the harassment in advance. Rather, the employer is liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages.

If the supervisor’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

Contact an Attorney Today

To discuss a workplace harassment claim, please contact the attorneys at Peters Brovner LLP for a consultation.