Sexual Harassment

There are two types of sexual harassment:

1. Quid pro quo harassment occurs when a supervisor or other person with apparent authority over employment benefits demands sexual favors from an employee in return for continued employment or some employment benefit.
2. Hostile work environment harassment occurs when an employee is subject to unwelcome sexually offensive conduct that alters employment conditions and creates an abusive or hostile work environment. To constitute actionable sexual harassment, the conduct must meet a certain level of severity or pervasiveness which varies under federal and state law. Generally, the alleged conduct is judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. However, harassment can be non-sexual, such as offensive remarks about a person’s sex. To be actionable, the harassment must be so frequent or severe that it creates a hostile or offensive work environment or results in an adverse employment decision. Teasing, isolated incidents, or offhand comments do not constitute actionable harassment unless they are severe or pervasive.

Title VII applies to all federal, state, and local government employers; private employers with at least 15 employees; private and public employment agencies; labor organizations; and joint labor-management committees controlling apprenticeship and training.

Employers are generally liable if a supervisor is the harasser. However, they have an affirmative defense if they can show they acted reasonably to prevent and correct the harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. If the harasser was not a supervisor, an employer is liable if it knew or should have known of the misconduct.

The Equal Employment Opportunity Commission (EEOC) is responsible for investigating claims of sexual harassment under Title VII. Discrimination claims must be first filed with the EEOC before a victim can go to court. If the EEOC does not resolve the claim within 6 months, the employee can obtain a “Notice of Right to Sue” from the EEOC and then bring an action in federal or state court within 90 days of the date the notice was received.

New York State Human Rights Law (NYSHRL) prohibits sexual harassment as a form of sex discrimination. Harassing conduct is unlawful when it subjects a person to inferior terms, conditions, or privileges of employment based on membership in one or more protected classes. Unlike federal law, state law does not require that sexual harassment be severe or pervasive. However, harassment must consist of more than “petty slights or trivial inconveniences.”

State law applies to all employers regardless of the size of the business. Employers are required to protect employees from sexual harassment by other employees as well as third parties in the workplace, such as customers and vendors. In addition, New York holds employers responsible for sexual harassment by employees against independent contractors, vendors, consultants, or anyone else who is providing services to the employer. Furthermore, there are more responsible parties under state law for sexual harassment. Unlike federal law, employees who are owners, managers, and supervisors maintain individual liability if they condone or create the hostile work environment.

Under the NYSHRL, a discrimination complaint can be filed against an employer with the New York Division of Human Rights (DHR) or a victim can opt to not file a complaint with DHR and instead bring a lawsuit in the New York State Supreme Court.

In 2019, New York State enacted laws to help minimize sexual harassment in the workplace. All employers regardless of size are required to:

1. Conduct mandatory sexual harassment prevention training annually, and within thirty (30) days for newly hired employees, which adheres to certain minimum standards and
2. Adopt and provide employees with a written sexual harassment prevention policy, which adheres to certain minimum standards.

Sexual harassment prevention training must be interactive; include examples of conduct that constitutes sexual harassment; and provide information on employee’s rights of redress internally and under federal, state, and local law. Interactive training may be in-person or online so long as employees can ask questions and receive answers in a timely manner.

Written sexual harassment prevention policies must include examples of prohibited conduct; information about federal, state, and local laws, remedies, and forums for seeking redress; outline complaint and investigation procedures; and state that retaliation is unlawful among other provisions. Employers must distribute policies to all employees.

The New York State Department of Labor (DOL) provides model training and policies that employers can use, or they can develop their own provided that they equal or exceed the DOL’s standards.

New York City has enacted its own law with similar provisions to the state. However, all New York City employers must conspicuously display notices regarding sexual harassment prevention in the workplace (in both English and Spanish), and distribute a factsheet to all employees. Furthermore, all New York City employers with 15 or more employees must provide interactive sexual harassment prevention training to all full and part-time employees and interns annually, and to new employees within 90 days of hire. Training is comparable to New York State’s requirements, however, there are some differences. Note that New York City employers must comply with both the state and city laws.

Under federal, state, and city law, retaliation by an employer against an employee who makes a claim or asserts a right protected by discrimination laws is prohibited. Examples of retaliation include dismissal, demotion, disciplinary action, cut in work hours or pay, reassignment to a less desired work location, and other actions penalizing a worker.