Sexual Harassment

What Constitutes Sexual Harassment?

Sexual harassment can encompass a wide variety of unwanted sexual or gender-based conduct.  The exact contours of what constitutes sexual harassment depend upon whether you are suing under federal, State or City law.  Such conduct may include, among other things:

• Unwelcome sexual advances;
• Requests for sexual favors;
• Sexually offensive/inappropriate remarks or jokes;
• Unwanted touching or groping;
• Coerced sex acts;
• Requests for favors of a sexually suggestive nature;
• Displaying pornographic images, sexual graffiti, or offensive illustrations;
• Comments about a person’s gender or sexual orientation;
• Sexual gestures (e.g., pantomiming sex acts), notes, teasing, jokes;
• Deliberate and unwelcome touching, pinching, patting;
• Attempts to kiss or fondle;
• Pressure for dates and/or pressure for sex;
• Sexually demeaning comments;
• Comments generally demeaning to one particular gender.

What Is the Process to File a Sexual Harassment Claim in New York City?

The process for filing a sexual harassment claim can be complicated and differs depending on where you are filing the claim and under what statute.  For this reason, it is important to work with an experienced attorney to make sure you are meeting all the requirements and deadlines.

For example, if you want to sue an employer for harassment under federal law (Title VII discussed below) you must first file a complaint with the Equal Employment Opportunity Commission (EEOC) before proceeding to court.

Similarly, there are City and State agencies that will take complaints of harassment and investigate them on your behalf.  This can sometimes be a preferable option to a lawsuit, but again, that can only be determined after talking with an attorney about the specific facts of your case.

Federal Protections against Sexual Harassment

Under federal law, there are two primary statutes that protect against sexual harassment: Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.

Title VII of the Civil Rights

• Protects employees, job applicants and union members from sex discrimination at the workplace and at the union hall.
• Title VII only applies to employers with more than 15 employees.
• Under Title VII, employers are required to take steps to prevent sexual harassment and, if sexual harassment is reported, to take immediate action to address the situation.
• Title VII protects employees who reports sexual harassment against retaliation from her, his or their employer.
• Harassment need not target a specific individual to be unlawful.  And the harasser’s intention – such as to be humorous or to pay a compliment – also bears no impact on whether the conduct is illegal.

Title IX of the Education Amendments of 1972

• Prohibits sex discrimination in educational programs that receive federal funding, which includes almost all universities both private and public.
• Schools are required by law to have internal Title IX complaint procedures, including a designated Title IX office, and must be responsive to your complaints and take steps to prevent further discrimination.
• Schools and Universities can, in certain circumstances, be liable for sexual misconduct that occurs on campus.  For example, liability may exist when:

• • a school fails to provide proper student safety and security.
  • a school fails to take action despite warning signs that a school-sponsored organization, such as a fraternity or sports team, engages in conduct involving sexual assault
  • a school fails to respond appropriately after being warned that a student or staff member has threatened or harassed a student, or otherwise ignores reports of sexual assault or sexual harassment, they could be liable if a subsequent assault then occurs.
  • a school admits a student who it knows has a history of sexual assault and allows that student to live in student housing or otherwise participate in certain other student activities.

State Protections for Sexual Harassment

With the emergence of the Me Too movement, more survivors of sexual abuse and harassment are coming forward and seeking justice.  Indeed, in early 2022, the New York State Legislature passed the Adult Survivor’s Act, which allows adults to bring civil cases against their abusers that had previously been time barred.  It is important to note, however, that the ASA primarily covers sexual assault cases – not most sexual harassment cases.

New York State’s comprehensive anti-discrimination statute is the New York State Human Rights Law.  The State Human Rights Law prohibits discrimination based on specific protected classes in employment, housing, credit, places of public accommodations, and non-sectarian educational institutions.

In 2019, New York State increased protections from sexual harassment in the workplace, when it adopted the following changes to the State Human Rights law:

• expanding the definition of “employer” to encompass all private employers, regardless of size
• eliminating the “severe or pervasive” standard that had been the legal standard applicable to hostile work environment claims under both the federal and New York State anti-harassment laws.
• Eliminating the Faragher/Ellerth defense, which had allowed employers to avoid liability for hostile work environment when they could establish that the plaintiff did not utilize opportunities provided by the employer to prevent or rectify alleged harassment.
• Extending of Protections to Non-Employees, including contractors, vendors, or consultants
• Allowing punitive damages to be available as a remedy in all cases of employment discrimination related to private employers brought under the New York State Human Rights Law.

City Protections from Sexual Harassment

Like New York State, New York City’s laws provide greater protection than federal law for Sexual Harassment.

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.

In 2018, the city increased the protections it affords victims of sexual harassment by passing the Stop Sexual Harassment in NYC Act. The Act expanded the City Human Rights Law in cases of gender-based harassment to increase the statute of limitations from one year to three years and expand protections to all employees, regardless of the size of their employer.

Further, it requires that Employers with 15 or more employees, or one or more domestic worker, conduct annual sexual harassment prevention training for all employees. Employers must ensure all employees are trained annually.  The training must include the following:

• An explanation of sexual harassment as a form of unlawful discrimination under local law;
• A statement that sexual harassment is also a form of unlawful discrimination under state and federal law;
• A description of what sexual harassment is, using examples;
• Any internal complaint process available to employees through their employer to address sexual harassment claims;
• The complaint process available through the Commission, the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission, including contact information;
• The prohibition of retaliation including examples;
• Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention; and
• The specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints.
• Employers must keep a record of all trainings, including a signed employee acknowledgement. These may be kept electronically. The certificate of completion provided at the end of the Commission’s training meets this requirement.