Unfortunately, sexual harassment remains a serious concern in today’s workplace. In fact, according to a recent survey by Cosmopolitan Magazine, 1 out of 3 female employees between the ages of 18-34 stated they were sexually harassed in the workplace. In addition, some cases have been in the news recently including a trial involving a female attorney who alleged sexual harassment against her former employer, a law firm in New York City and a high level executive in Silicon Valley – those cases will be the subject of a separate blog post. Today, our Award-Winning New York Employment Lawyer has been asked to provide an overview on unlawful workplace harassment that affects both men and women and all too often impacts (and potentially derails) careers and livelihoods.
Sexual Harassment is a subset of a gender discrimination and generally consists of unwelcome sexual advances, requests for sexual favors, and other verbal and/or physical conduct of a sexual nature when: (i) submission to such conduct is made a term or condition of employment or submission to or rejection of such conduct by an individual is used as a basis for an adverse employment action; or (ii) Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. The first claims is referred to as a Quid Pro Quo claim and the second claim described above is Hostile Work Environment, which is more common. Both types of claims are discussed below.
In a hostile work environment setting, an employee is subject to unwelcome sexual advances, sexual innuendos, and/or offensive gender-based comments that are sufficiently severe or pervasive from the perspective of a reasonable person of the same gender as the offended employee. Under federal law, the harassment must be sufficiently severe or pervasive to alter the conditions of the offended employee’s employment. A single instance of sexual harassment in the hostile work environment context may be sufficient if the conduct is severe enough, but repeated instances increase the pervasiveness of the events, so that a reasonable person would be more likely to find the conduct sexually harassing due to its repetition. The standard under the New York City Human Rights Law is lower than the federal law and the focus of the inquiry in a case brought by a female employee will be was a woman treated worse than non-women–a/k/a men–because of her female sex.
In certain situations, it is possible for an employee to allege a hostile work environment claim even when the alleged harassment was directed at a third party. As such, an employee can allege a hostile work environment if he or she witnessed the harassing conduct which was considered sufficiently severe or pervasive by a reasonable person of the same gender as the complaining employee. These types of cases typically involve scenarios when an employee works in close proximity to where another employee is being harassed or where other employees are discussing sexually offensive conduct.
In general, an employee must show the following in a hostile work environment claim under federal law:
1. The employee was subject to unwelcome sexual harassment;
2. The harassment was based on the victim’s gender;
3. The harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; and 4. The relationship between the employer and the person committing the harassing conduct is adequate to impose liability on the employer.
The second type of sexual harassment claim is based upon a “quid pro quo” (“this for that”) theory. In general, an employee can allege such a claim when a supervisor makes sexual conduct of an employee a condition for employment benefits or promotion, or a condition for avoiding an adverse employment action (e.g., a disciplinary action notice or denial of promotion of benefits). These types of cases typically involve sexual propositions or repeated advances where a term of employment is conditioned on submitting to a supervisor’s unwelcome advances. For example, a Quid Pro Quo claim may be alleged if an supervisor conditions a promotion in exchange for a sexual favor. When asked about sexual harassment most people think of this type of example.
Employees should retain all evidence of the harassment – text messages, emails, messages, letters, etc. This can be very helpful in proving your case especially where the allegations can be he said versus she said.
1. It is only sexual harassment if the inappropriate activity occurred in the workplace. Not true, especially in today’s digital age. Many claims are based on actions that occur at business trips or company parties.
2. I can’t be sexually harassed because my harasser is of the same gender. Not true. The US Supreme Court in the Oncale case recognized that sexual harassment can occur between a male employee and another male employee and by and against female employees as well.
3. Only my supervisor can sexually harass me. Not True. Depending on the facts, an individual can assert a claim for conduct by a co-worker or a even a third party like a valuable customer or vendor.
The answer as to whether you have a claim or not is a very fact specific analysis – you should consult an experienced employment lawyer to evaluate your claim and determine whether a strong claim exists, and if so, what are the strategic considerations in pursuing a claim – should you file an administrative complaint with the EEOC or an equivalent agency, file a lawsuit or take other action. Contact our Award-Winning New York Sexual Harassment Attorney at (800) 893-9645 to learn your rights and options.