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New York Sexual Harassment Law: A Guide for Workers
Sexual harassment remains one of the most pervasive forms of discrimination that American workers face in the 21st century.
According to the U.S. Equal Employment Opportunity Commission (EEOC), although 25 to 85% of women report experiencing some form of sexual harassment at work, most don’t file complaints out of a fear of retaliation.
But in the wake of the #MeToo movement and a national reckoning with the epidemic of sexual misconduct in American institutions, survivors of workplace abuse are increasingly empowered to find the legal support they need to hold their perpetrators accountable for their wrongdoing.
In 2021, the EEOC reported that survivors of sexual harassment won nearly $20 million more in legal recovery than they did in 2017.
At the same time, a number of states, including New York, have adopted new anti-harassment legislation aimed at expanding legal protections for workers, promoting employer transparency around misconduct, and supporting survivors to take legal action.
In this guide, we’ll cover the essential information about sexual harassment that all New York employees should know: what workplace sexual harassment is; what local, state, and federal laws protect against it; and what steps workers can take if they’ve had their rights violated.
If you have questions about non-compete agreements, please contact the experienced New York workplace sexual harassment lawyers at Ottinger Employment Lawyers today.
What is Sexual Harassment in New York?
U.S. law treats sexual harassment as a form of unlawful discrimination, specifically, discrimination perpetrated on the basis of sex.
This includes misconduct based on an individual’s sexual orientation, self-identified sex, gender expression, gender identity, and/or transgender status.
At the federal level, sexual harassment is prohibited under Title VII of the Civil Rights Act of 1964. According to this law, employers with 15 or more employees have an affirmative responsibility to protect their employees from harassment and unwanted sexual conduct in the workplace.
Inappropriate behavior becomes illegal sexual harassment when:
- the conduct has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile or offensive work environment,
- the conduct is made either explicitly or implicitly a term or condition of employment, or
- submission to or rejection of such conduct is used as the basis for employment decisions.
Although sexual harassment has been largely seen as an issue affecting women, reports show that men file about one in five sexual harassment complaints in the U.S.
According to the law, people of any gender can experience or perpetrate sexual harassment. A woman’s behavior towards a man or another woman could be considered inappropriate harassment — likewise with a man’s behavior towards another man.
Harassing conduct can include, but is not limited to, the following:
- Sexually oriented gestures, noises, remarks, or comments about a person’s sexuality or sexual experience
- Someone displaying sexually suggestive objects, pictures, cartoons, graffiti, reading materials or other materials that are sexually demeaning or pornographic in the workplace, or “giving” someone such items
- Unwanted physical advances, such as touching, back rubs, pats on the butt, poking, pinching, kissing, hugging, grabbing, or “accidental” brushes against your chest or other parts of your body
- Rape, sexual battery, molestation, or attempts to commit these assaults
- Unwanted verbal advances or sexual propositions
- A threat to reduce your hours, benefits, rate of pay, or otherwise hurt your conditions of employment if you don’t comply with a sexual request
- Loss of employment, benefits, or other adverse impacts after complaining about harassment
U.S. law breaks sexual harassment into two general types: “quid pro quo” and “hostile work environment” harassment.
Quid pro quo is a Latin phrase meaning “this for that” or “something for something.” It essentially describes the situation of an exchange.
Similarly, quid pro quo harassment occurs when sexual conduct is made a condition for any part of your job, such as promotion, benefits, or hiring.
Quid pro quo harassment can be presented as an offer or a threat — for instance, if your boss says that you risk firing or demotion for not engaging in unwanted sexual conduct.
“Hostile work environment” sexual harassment occurs when the offending behaviors are so pervasive or severe as to alter the conditions of your employment.
You can experience a “hostile work environment” even if the behavior is not aimed at you. If someone’s behavior is so disruptive that it unreasonably interferes with your ability to do your job, then you’re experiencing a hostile work environment.
What Does New York Law Say About Sexual Harassment at Work?
New York’s state law offers individuals living and working in the state expanded protections from harassment that aren’t specified under federal law.
For one, the state’s New York Human Rights Law says that all employers — regardless of how many employees they have — have the responsibility to maintain a work environment that is free from sexual harassment.
This means that workers at companies with fewer than 15 employees (the minimum requirement for making an EEOC claim) still have a channel for filing a formal complaint for harassment they experience at work.
In addition, some local governments also enforce laws protecting individuals from sexual harassment and discrimination.
Within New York City, for example, the New York City Human Rights Laws offer another venue for those who experience harassment to report their abusers for misconduct or retaliation for prior complaints.
A slate of new legislation introduced in the wake of the #MeToo movement has further strengthened New York’s existing anti-harassment laws.
Here are some more of the expanded legal protections against sexual harassment New York workers have gained since 2017:
- You don’t have to be directly employed by a company to hold them liable for sexual harassment. As of 2018, New York state law says that sexual harassment of non-employees in the workplace is also grounds for unlawful discrimination. “Non-employees” can include contractors, subcontractors, vendors, consultants, or the employees of any outside entities working with an organization. Employers may be held liable to non-employees for sexual harassment when the employer “knew or should have known” it was happening and “failed to take immediate and appropriate corrective action.”
- All employers must adopt a sexual harassment prevention policy and provide employees with annual sexual harassment prevention training. The law stipulates certain minimum requirements that these prevention policies and training programs must follow in order to ensure that all employees are informed about their rights under federal, state, and local law, what sexual harassment looks like, how to file a complaint of harassment, the adjudication procedures available to them.
- Employers are banned from using nondisclosure and confidentiality agreements to silence survivors of sexual harassment. This law prevents companies from including restrictive contracts, like NDAs, as conditions in settling cases involving sexual harassment. The one exception to this rule is when one of these agreements is the reported preference of the person making the complaint of harassment.
- Employers in New York also may not subject workers bringing charges of sexual harassment-based discrimination to mandatory arbitration clauses. Companies use these contracts to force workers to that bring claims of harassment into the relatively private arbitration process — which disproportionately favors employers and historically returns lower rates of recovery to plaintiffs. Now, survivors of harassment have the option to sue their employers and abusers for wrongdoing in public courts.
- Workers have access to a confidential hotline where they can make confidential complaints of sexual harassment and receive free legal advice. The toll-free hotline, 1-800-HARASS-3 (1-800-427-2773), operates during regular weekly business hours and is manned by pro bono lawyers from the NY State Division of Human Rights (DHR).
New York state continues to pass anti-harassment measures proposed in the wake of #MeToo. As recently as March 2022, the state adopted several more regulations aimed at solidifying existing legislation.
For instance, by expanding the definition of illegal retaliation and closing loopholes that excluded certain employees from legal protections.
What Kind of Legal Restitution is Available for Survivors of Sexual Harassment?
Employees who’ve been sexually harassed at work can file a discrimination complaint through federal, state, or local channels and hold their company liable for this violation of their rights.
Workers who do so may be entitled to financial remedies in the form of damages, which can include:
- Front pay or reinstatement,
- Lost benefits,
- Payment of attorneys’ fees,
- Prejudgement interest,
- Compensatory damages (money awarded to compensate the person for their losses,) and
- Punitive damages (money awarded to punish the wrong-doer), in certain circumstance.
There are different procedures for filing a sexual harassment complaint and bringing a lawsuit at the federal, state, and local levels.
For instance, national sexual harassment claims are handled as violations of the Title VII of the Civil Rights Act. Unfortunately, this legislation only covers claims for companies with 15 or more employees.
To bring a suit, a worker first has to file a formal complaint with the Equal Employment Opportunity Commission (EEOC) within 300 days of the misconduct. Then, the EEOC will have 180 days to investigate.
After that time, the individual may request a “right to sue” letter, after which they have 90 days to bring a claim in federal court.
In order to receive punitive damages under Title VII, a person must be able to show that the employer acted with malice or reckless indifference to the rights of the complainant.
Under federal law, Title VII limits the amount of damages available based on the employer’s size. Employers with fifteen to a hundred employees are not liable for more than $50,000 in damages, while employers with 500 or more employees may face damages up to $300,000.
For these reasons, employees working in New York may prefer to pursue action in state court instead. For one, there’s a larger window of time for filing a lawsuit: three years after the incident, instead of one year.
New York also doesn’t require that a complaint be filed first with the New York State Division of Human Rights. But if someone does file with the state division prior to filing a legal action in state court, the administrative action must be dismissed before they can bring a judicial action.
Once the administrative action is dismissed, the person has only 90 days from the date of dismissal to file in state court. Be aware: punitive damages are not available for state law claims.
But they can be assigned under the New York City Human Rights Law, “where the wrongdoer’s actions amount to willful or wanton negligence,” in cases of “recklessness,” or when there is a “conscious disregard of the rights of others or conduct so reckless as to amount to such disregard,” according to a 2017 case.
In addition to other claims, a victim of sexual harassment may also bring a lawsuit under New York tort laws against the perpetrator of the harassment.
Tort claims might include actions for defamation or intentional infliction of emotional distress. Filing one of these torts claims in New York must be done within one year of the harassment — unless there’s a physical injury involved, in which case you have within three years of the injury to act.
What TO DO if you Experience Sexual Harassment in New York
- Understand your rights. Your employer has an affirmative duty to provide a workplace that is free of sexual harassment and to respond to incidents of sexual harassment with immediate and appropriate corrective actions.
- Read your employer’s sexual harassment prevention policy. Employers are required by Section 201-g of the New York State Labor Law to have a policy on sexual harassment and to ensure employees are made aware of the policy. Employers must provide each employee with a written copy of their sexual harassment prevention policy.
- Report the incident(s). Follow the procedures in your employer’s policy as much as possible when reporting an incident of sexual harassment. Report the incident in writing, or follow up with a writing documenting your report. When filling out the form, describe the incident in as much detail as you can. Include details of all incidents if you have experienced more than one. Include the name of the harasser and describe his or her relationship to your own position (supervisor, co-worker, etc.). Be sure to include the names of any witnesses to the incident. If there weren’t witnesses, did you mention what happened to anyone else? Who did you tell and when? Having a witness or other form of corroboration is incredibly helpful to establish the truth of your claim to those charged with investigating it. Also, mention any previous attempts you may have made to inform management of the conduct and whether there was any response to your previous complaint. Describe how the behavior has impacted your ability to perform your job, including any emotional distress or physical symptoms. Describe whether there has been any retaliation as a result of your report of the behavior or request to stop the behavior.
- Think carefully before sharing everything on social media. Before you decide to share something online, remember that any social media posts relevant to your case can be obtained by an employer or defendant and may be used in attempts to discredit you, cast doubt on your story, or question the extent of damages you suffered. While your private discussions with attorneys and health counselors are confidential, everyday conversations with your friends, family, co-workers on social media are generally NOT confidential or protected. So if you tell someone the details of your conversations with your lawyer, those communications can lose the special confidentiality protections they would otherwise have had.
What NOT To Do if you Experience Sexual Harassment in New York
- Destroy or get rid of the evidence of the harassing behavior. It’s understandable that your first instinct may be to delete or throw away an offensive note, text, or email. But you should resist that instinct. Those offensive words, images, and texts are evidence that supports your claim and will be important in any investigation or lawsuit that may occur later. Not only should you preserve this type of evidence, you should also take notes about what happened, when it happened, where it happened, and who else might have witnessed the behavior. It’s best to do this as soon after the event as possible. If you’re experiencing recurring incidents of harassment, do this for each one. Documenting an incident can be as simple as taking a picture of a whiteboard with your phone. Just make sure you keep a careful record of it. When it comes to keeping track of harassment, it’s important to know that New York is a “one-party consent” state. While many states require that both parties to a conversation must consent to its being recorded, New York law requires only one participant’s consent. So if you’re a part of the conversation and decide to record it, then you’re not breaking the law. But be careful — the laws for recording conversations vary from state to state.
- Wait too long before you act. There are time limits for filing complaints with state or federal administrative authorities and for filing lawsuits in court. A complaint with the EEOC must be filed within 300 days from the last date that sexual harassment occurred, while complaints filed with a state agency must be done within three years from the date of the last incident.
- Think retaliation is allowed. It’s illegal under state and federal laws for an employer to take adverse action against you for reporting sexual harassment, filing a claim, or making a complaint about sexual harassment. Retaliation generally appears as an adverse action affecting your conditions of employment, like firing, demoting, or withholding promotion or benefits for someone who’s reported harassment. It’s also illegal for employers to retaliate against someone for participating in an investigation or lawsuit about a sexual harassment claim. So if you complain about harassment and your employer retaliates against you for complaining, that is itself unlawful and will subject your employer to liability.
- Spend too much time worrying whether you are just “too sensitive” or “can’t take a joke.” It is quite common for perpetrators of sexual harassment to claim it was all “just a joke.” And in some cases, it may truly be that the perpetrator’s sole intent was just to be funny. But it is not just the perpetrator’s intent that matters — it is how a reasonable person would react to the behavior and the impact of that behavior on the victim that determines whether or not the conduct is sexual harassment. And even if the offensive behavior ends up being deemed too mild to count legally as sexual harassment in the final analysis, if it is making you uncomfortable, you have a right to say so without fear of retaliation.
- Confuse sexual assault and sexual harassment. If you have been forced through violence, coercion, or incapacitation into involuntary sexual contact or sexual acts, this is more than sexual harassment. It’s sexual assault, and it’s a crime under New York law.
- Assume you are the only victim of the perpetrator’s behavior. To be considered harassment, the law requires that inappropriate behavior is severe and/or pervasive. Behavior one individual perceives as only mildly rude could be highly offensive to someone else. This is why, legally, the behavior must be both objectively and subjectively offensive to be deemed harassment. You may not want to report behavior you experience on your own behalf if you find it merely stupid and annoying. But keep in mind that a person’s actions could be impacting other people more negatively.
If You Have Experienced Sexual Assault or Violence
- Call 911 (if you are able to do so) if you are being assaulted, or if you witness someone else being sexually assaulted.
- Report incidents of sexual assault to local police.
- See a healthcare provider to receive appropriate care.
- Consider contacting a crisis hotline.
- Seek support from friends, family, and community agencies.
You may also wish to consult some resources listed here.
Get in Contact with a New York Sexual Harassment Lawyer Today
If you’re think you’re sexual harassment at work, you don’t have to take on this burden alone. Consult with an expert who understands the law and can evaluate your situation.
An employment attorney can help you understand how federal and state legislation would apply to the specific circumstances of your case.
An attorney also can help you understand your options, file a complaint, determine what is and isn’t relevant, and evaluate whether it makes sense to file a lawsuit.
As you weigh alternatives, an attorney can also advise how different courses of action might help or hurt your case.
Ottinger Employment Lawyers has been helping employees win restitution for the violation of their rights since 1999. Get in touch with our team today to discuss the details of your case and learn how we can help.
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