Difference Between Sexual Harassment and Sexual Assault

New York City Lawyers Asserting the Rights of Employees

When you go to work, you hope that you will be treated with dignity. Unfortunately, sexual violence does occur in workplaces, and it can leave victims feeling degraded and humiliated. There is a difference between sexual harassment and sexual assault, but both are actionable under the law. If you experienced sexual violence on the job, you should consult the seasoned employment law attorneys at Phillips & Associates. Our New York City sexual harassment lawyers are experienced trial attorneys who may be able to represent you.

The Difference Between Sexual Harassment and Sexual Assault

Sexual harassment is a broader term than sexual assault. It can include unwelcome behavior of any kind, such as sexual innuendoes, threats, pranks, explicit or inappropriate comments, jokes, memes, bribes, and graphics, as well as sexual assault. Under certain circumstances, these harassing behaviors are actionable under city, state, or federal laws.

Sexual assault is also criminal conduct that can be pursued in criminal court. Under New York Penal Code section 130(3), sexual assault is called sexual contact. It includes any touching of sexual or intimate parts to gratify one’s sexual desire. It includes touching of the victim, and it can also include touching of the perpetrator by the victim, either above or under clothing. An element of every sexual contact crime under section 130 is lack of consent, whether from forcible compulsion, incapacity to consent, or a lack of agreement to the perpetrator’s conduct.

If you are sexually assaulted in New York City, you should report the assault to the police. A prosecutor proving sexual assault must prove the case beyond a reasonable doubt; the standard for sexual harassment under city, state, and federal laws is lower.

The New York City Human Rights Law

To show liability for a hostile work environment under the New York City Human Rights Law, you do not need to show that the harassment was severe or pervasive. Instead, you will need to show harassing conduct that exceeds what a reasonable victim of discrimination would view as a trivial inconvenience or petty slight. The court will not view criminal conduct, such as sexual assault, as a petty slight or trivial inconvenience. A single instance of sexual assault is serious enough to count as sexual harassment.

If criminal charges were brought, a conviction can make it easier to establish a civil claim because the standard of proof is lower in the civil harassment claim. However, even if there is no conviction, nor were charges brought, notifying the police can result in an investigation, and the investigation can yield evidence that may make it easier to establish that workplace sexual assault occurred.

Federal and State Laws

A hostile work environment is created under federal law if an employer’s conduct has the purpose or impact of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. The harassment must be hostile or abusive, not only from your subjective perspective but also from the point of view of a reasonable person. The U.S. Supreme Court has found that even a single instance of sexual assault sufficiently changes the conditions of a victim's employment and clearly generates an abusive work environment for the purposes of Title VII liability. Meanwhile, state law applies a similar analysis to city law.

Generally, supervisors and managers are agents of an employer. If they commit sexual assault against an employee, the employer can be held liable for sexual harassment. The employer is liable if a supervisor uses their actual or apparent authority to sexually assault the employee, or if the supervisor is otherwise helped in accomplishing the sexual assault because an employment-based agency relationship exists. The situation is more complicated when trying to hold an employer accountable for sexual assault by a coworker, client, or customer. To hold an employer liable for sexual assault by a coworker, your attorney would need to show that the sexual assault is harassment that should be imputed to the employer.

Discuss Your Case with a Sexual Harassment Lawyer in New York City

If you want to know more about the difference between sexual harassment and sexual assault, you should call Phillips & Associates. We represent workers who have been sexually harassed in Brooklyn, Manhattan, Queens, the Bronx, and Staten Island, as well as Long Island, Westchester County, New Jersey, and Pennsylvania. Call us at (866) 229-9441 or complete our online form.

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