Our federal government describes sexual harassment on its EEOC (Equal Employment Opportunity Commission) website as behavior that may include making unwanted sexual advances, requesting sexual favors or making comments of a sexual nature. It can also include making negative or offensive comments about a person’s gender. The EEOC also states that the victim and the harasser can be of opposite sexes or of the same sex.
In its brochure entitled “Sexual Harassment in the Workplace: Know Your Rights,” the New York Attorney General’s Office provides a detailed description of this type of workplace misconduct. Among other facts, it notes that sexual harassment is a form of gender-based discrimination.
Here’s additional information about quid pro quo sexual harassment, hostile work environments and crucial ways that all New York employers must sharpen their efforts to prevent this form of abusive behavior, while also helping those who need to file timely complaints.
Various actions and behaviors that often constitute sexual harassment
Although many behaviors other than those listed below are forms of sexual harassment, the New York Attorney General’s Office references several of the following, forbidden activities.
Making offensive remarks or jokes of a sexual nature;
Engaging in inappropriate touching or sexual contact – or demanding that a worker reach in and find the keys in the pants pocket of a supervisor or co-worker;
Posting pornographic images in the workplace – or passing them around;
Making rude comments about another person’s likely sexual preferences;
Physically mimicking sex acts — or vocally trying to reproduce sounds like those that might occur during some type of sexual activity;
Repeatedly making unwanted demands for sexual favors or inappropriate touching;
Constantly asking someone to date you or spend time alone with you
Touching another person’s body in a sexually suggestive manner;
Failing to stop sexually harassing behavior in the workplace. In addition to abusive employees, the offenders may also be customers or clients of the employer.
As this list indicates, the forbidden words or offensive actions often compromise a worker’s sense of safety, self-respect and security.
When these forbidden activities occur, the aggressor or employee is committing gender discrimination in direct violation of Title VII of the 1964 federal Civil Rights Act, as well as the New York State Human Rights Law.
Acts of sexual harassment may indicate that New York City’s Local Law No. 96 (amending the city’s administrative code) may have been ignored or violated. That law requires employers who’ve hired fifteen (15) or more employees to provide comprehensive anti-sexual harassment training to all their employees. (When an employee works for an employer with fewer than 15 employees, a sexual harassment lawsuit can be filed as a civil rights case in a city or other local jurisdiction with its own civil rights law or statute).
Sexual harassment based on a person’s perceived sexual orientation
When this type of forbidden behavior occurs, it also directly violates the New York State Orientation Non-Discrimination Act (SONDA).
When forbidden sexual harassment activities most commonly take place
All sexually offensive or forbidden behaviors can take place during all regular workplace activities. Sexual harassment may happen during job interviews or when an employee requests a transfer or promotion — or asks to take some type of vacation or other leave from the job. And sexual harassment can occur away from the usual office at company-sponsored activities or between workers who are working in another location while handling company business.
As the New York Attorney General’s Office and the EEOC have noted, these activities and behaviors rise to the level of illegality when they’re so severe or frequent that they result in an adverse decision affecting the victim’s current or potential employment. However, the negative result does not have to cause economic harm or firing of an employee to be actionable.
What is quid pro quo sexual harassment?
Stated simply, this form of harassment usually occurs when one worker has management or other authority rights “over” another employee who may be asking for a raise, a job transfer or a job promotion. Quid pro quo, which in Latin means “this for that” indicates in this context, that the harassing party is indicating that s/he will only grant the request if the other employee agrees to go out on a date or actually have sex (or an affair) with the party in power.
When a legitimate request is made and then turned down, the harassed party may be able to bring a lawsuit based not just on a quid pro quo basis – but also for retaliation. Such a case might be even stronger if the harassed party is demoted – although that added negative action isn’t required.
What constitutes a “hostile work environment” in a case based on sexual harassment?
A sexually harassed employee can bring a strong case referencing this type of behavior when it’s occurring regularly on either a daily or weekly basis. In other words, the victim of the harassment is constantly being subjected to crude sexual comments or is often touched in sexually offensive ways. When deciding whether to bring this type of lawsuit, it’s often wise for victims to keep a journal that notes the names of the abusive employees and their precise behavior. The victim should also note if there were any witnesses and if the offensive behavior was reported (on specific dates) to one or more supervisors or personnel managers.
A plaintiff in this type of case does not have to be the party who is being touched in a sexually offensive way — or the one to whom the offensive language is being spoken. It’s enough to allege that the victim simply works in the same general work area and the behavior is making it hard for the individual to do his/her best work. In some cases, employees in hostile work environments may experience various physical symptoms due to their stress or find it hard to sleep. Others may need to seek out counseling or therapeutic support.
Many different people can be responsible for creating a hostile work environment besides co-workers and supervisors. The offending parties may also be higher-level managers or even company customers. In some cases, when workers are having sexual affairs with one another, outside parties may be negatively affected. These outsiders can file claims of sexual harassment since they’re being forced to work around the co-workers who are constantly granting special favors or privileges to one another while handling company assignments and activities.
In one of its brochures on sexual harassment, the NY Attorney General’s Office has stated that this type of harassment can also occur in such other settings as housing, schools or other public accommodations. People who’ve been sexually harassed in those environments by landlords, service providers, teachers and others can also file complaints for sexual harassment. The AG’s office says that it’s “advisable” for wronged employees to consult with a New York City discrimination lawyer.
New ways NYC employers must try to prevent harassment and facilitate abuse filings
Given all the new legislation passed in New York during the last two years, every employer, regardless of size, must now make sure they’re in full compliance with the new laws designed to more effectively prevent sexual harassment – and help victims easily file timely complaints. It’s no longer enough to simply require all employees to undergo anti-sexual harassment training.
Employers should encourage more thorough and accurate recordkeeping for all sexual harassment complaints filed within the company. This is crucial now since New York’s new laws have now extended the statute of limitations for filing sexual harassment lawsuits from one year to three. Managers and supervisors must be reminded to keep copies of all such complaints for at least three years and to avoid disposing of any until after they’ve conferred with human resources;
New standards should be established regarding notes taken and reports drafted upon receiving all new sexual harassment complaints. In the past, alleged victims of sexual harassment – and possibly retaliation – were held to the stricter standard of proving “pervasive” or “severe” harassment in hopes of winning their cases.
The new standard clearly indicates the added credibility being assigned to all such complaints. Now, sexual harassment complainants need only establish that they have been subjected to inferior employment terms, conditions or privileges (as a result of their alleged harassment). Those assigned to receive complaints will require special training – particularly regarding the proper levels of privacy that must be maintained on behalf of all parties involved. While complete confidentiality isn’t fully possible – only employees with a definite “need to know” should be allowed to view complaint filings;
The quality of all annual, anti-sexual harassment training programs should be carefully re-evaluated. The new laws require that employers provide a lengthy list of precise types of objectionable behavior that can be considered sexual harassment (like the list provided at the start of this article).
Clear descriptions must be given during training sessions so that all employees – including supervisors and managers – will understand the types of behaviors they must immediately put a stop to – even when those involved may be company customers, consultants or outside vendors;
Supervisors must be cautioned about how they currently handle what appear to be consensual relationships between employees. After all, valid sexual harassment claims based on a “hostile” work environment can be filed by others around workplace lovers who believe they’re no longer able to do their best work due to such relationships;
Written employee materials in handbooks – or provided during trainings – must very specifically spell out how victims of sexual harassment should go about timely filing their complaints. If a copy of the exact form for filing a complaint isn’t provided to employees – then they must be told exactly where to obtain one from human resources or other personnel employees;
All employees must be reminded that all acts of alleged sexual harassment are viewed as misconduct. They should also be told that if proven, such acts can negatively affect their tenure with the company once each case has been fully resolved. Acts of retaliation must be clearly described and defined – and employees warned against making any attempt to punish accusers;
Outside speakers and the company’s own most effective teachers should address all employees on why sexual harassment destroys individual and company morale. Workers need to understand that it’s only by showing respect for each other that everyone can do their best work – and know they can count on others to help them achieve their full potential.
It might prove very helpful to include discussion periods in the annual training classes so that everyone can talk about how they feel when others fail to treat them with kindness and respect. After all, employee turnover is always highest in abusive environments.
If you believe you’ve been sexually harassed at work (or in any other environment named above), you should immediately contact your New York City sexual harassment law firm. We’ll fully investigate the facts of your case and then fight hard to win the maximum compensation available for all your pain and suffering, lost wages, possible medical expenses and other losses tied to your claim.