Here in New York City, victims of sexual harassment in the workplace may have multiple avenues for seeking justice. At the federal level, there’s Title VII. At the state level, there’s the New York State Human Rights Law and, for workers here in New York City, there’s the New York City Human Rights Law. These laws each have crucial distinguishing features, including different standards for establishing a claim. In other words, just because you don’t have a viable Title VII claim, that doesn’t mean you should just give up, as you may still have a potentially winning claim under other statutes, such as the NYCHRL. A knowledgeable New York sexual harassment lawyer can help you go over the specifics of your situation and which legal options potentially can best help you.
One of the most important things to know, when it comes to comparing and contrasting federal vs. state vs. city law, is that the NYCHRL is highly worker-friendly. Depending on the timing of your case, the NYCHRL may offer a much better option than the NYSHRL, or the two may both represent strong options.
A recent sexual harassment ruling from Brooklyn illustrates what we mean.
In that case, the worker was a personal trainer at a fitness center in the Dumbo neighborhood. In one late-2016 instance of harassment, a male coworker, upon seeing a picture of the trainer and a famous male hip-hop superstar together, asked if the trainer gave the rapper sexual favors in exchange for the picture. The coworker also posited that the trainer was providing sexual favors to her supervisor to get favorable treatment at work.
After the trainer complained, the employer investigated, the investigation corroborated the trainer’s accusations, and the employer issued a formal, written disciplinary action against the male coworker.
The trainer left her job and, in December 2018, she sued, alleging sexual harassment in violation of the NYSHRL and the NYCHRL.
The court sided with the employer on the NYSHRL claim. Under that law (as it existed when the trainer sued,) a worker alleging sexual harassment must establish that she suffered harassment that was severe or pervasive. In general, that standard means that a case based on “isolated remarks or occasional episodes of harassment” is insufficient to substantiate sexual harassment in violation of the NYSHRL. In the trainer’s case, she had two instances where the coworker insinuated that she used sexual favors as currency, both at work and in encounters with star rappers. While “inappropriate and disturbing,” they were too few to make out an actionable claim under the NYSHRL.
The NYCHRL was a different story.
Under that law, workers can pursue sexual harassment claims even if the harassment they endured was undisputedly neither severe nor pervasive. Under the NYCHRL, the worker must only have encountered “unwanted gender-based conduct” that rose above petty slights or trivial inconveniences.
In the trainer’s case, the court concluded that having a coworker openly suggest that she had sex with her supervisor to get ahead at work and provided oral sex to a music star in exchange for a picture were things that rose above the low standard of being mere “trivial inconveniences.” As the Appellate Division court wrote a decade ago, “comments . . . objectifying women’s bodies and exposing them to sexual ridicule, even if considered ‘isolated,’ clearly signaled that [the speaker] considered it appropriate to foster an office environment that degraded women.”
On that legal basis, the trainer was entitled to continue the pursuit of her sexual harassment case.
Changes in New York State’s Law of Sexual Harassment
Of course, the state legislature has made major changes in the NYSHRL since December 2018. In October 2019, amendments to the law took effect. Those 2019 amendments eliminated the “severe or pervasive standard” and, instead, simply required workers to demonstrate that they suffered “inferior terms, conditions, or privileges of employment” as a result of the harassment.
The New York State Department of Labor also made major changes to its “model sexual harassment prevention policy.” The DOL, in a publication released earlier this year, made it clear that its model policy reflects the “minimum standard.” In other words, any employer sexual harassment prevention policy that fails to meet the model’s standards in every way cannot possibly qualify as compliant.
The revised model reflects several things that New York workers should keep in mind. For one thing, the DOL’s model defines “sexual harassment” very broadly. The definition includes “gender-based discrimination, but… can be related to or affected by other identities beyond gender.”
What the DOL lays out is a broad array of forms of misconduct that can amount to sexual harassment, spanning much more than just sexual assault, unwanted touching, or quid pro quo sexual propositioning.
While the DOL’s list of types of sexual harassment includes those things, it mentions many more. For example, the DOL explicitly mentions “sex stereotyping” as a form of sexual harassment. As the DOL explains, sex stereotyping can include, for example, comments about your gender expression. This covers things like commenting if you wear clothing stereotypically associated with a gender identity that differs from what the commenter believes is your gender identity. Intentional misuse of pronouns is another example.
It also can cover things like assigning tasks based on traditionally gendered roles, such as asking female workers to serve food or drinks (or assigning all physical labor tasks to male workers.)
The state’s model policy also clearly establishes that there’s an intersectional element to sexual harassment. As the DOL explained, sexual harassment “does not happen in a vacuum… and discrimination… can be impacted by biases and identities beyond an individual’s gender.” As an example, the DOL provided the hypothetical scenario of a workplace where the employer places higher expectations or demands on Black women than it does on White women (or vice versa.) That circumstance “can be both racial discrimination and gender discrimination,” according to the department.
The DOL’s model policy also plainly lays out where sexual harassment can occur… which is essentially anywhere that work (or work-related activities) might occur. This may mean that you can experience workplace sexual harassment at a hotel if that’s the location of your employer’s holiday party or the site of an industry conference or expo. It also may mean that you can experience workplace sexual harassment in your home if you work remotely.
You can experience workplace sexual harassment basically anywhere you have access to a phone or tablet if your harassment occurs via phone calls, text messages, emails, or social media content. As the DOL explained it, gender-related “behaviors… that leave an employee feeling uncomfortable, humiliated, or unable to meet their job requirements constitute harassment.”
A few decades ago, many people associated workplace sexual harassment with a narrow range of activities, like a coworker molesting you or a supervisor threatening you with termination if you don’t sleep with them. Today, the law of sexual harassment in New York protects many more workers. If you’ve been harassed on the job, take prompt action by reaching out to the knowledgeable New York sexual harassment attorneys at Phillips & Associates. The law in New York State and New York City gives you stronger options than ever before, so contact us online or at (866) 229-9441 to set up a free and confidential consultation today to find out more.