Sexual Harassment in The Workplace
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. 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:
- 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 preferences;
- 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.
New York City’s laws provide even greater protection than 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 under the theory of respondeat superior.
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
Sexual Harassment in The Virtual Workspace
That fact that victim and harasser are in separate places and do not meet face to face is not, of itself, a defense to a harassment claim. All of the conduct that constitutes sexual harassment if done in person will likely constitute harassment if done online as well.
To discuss a workplace harassment claim please contact the attorneys at Peters Brovner LLP.