Preventing Sexual Harassment and Discrimination in the Workplace

Given all of the recent sexual harassment cases in the media and news, this subject is timely and the bar for tolerance has been lowered. Discrimination is differential treatment of a person or group on the basis of an attribute that is a prohibited ground of discrimination. Under federal law, protected characteristics include race, color, sex, age, religion, national origin, disability, and genetic information. Protections under the New York State Human Rights Law (NYSHRL) are far broader than federal law and a new amendment, which will be enacted as of May 2018, will recognize the broad continuum of gender and sexual orientation and will include caregivers.

Laws prohibiting discrimination “on the basis of sex” also prohibit sexual harassment. Discrimination can encompass harassment and is prohibited. Discriminatory harassment is unwelcome conduct related to a relevant protected characteristic which has the purpose or effect of either creating an intimidating, hostile, degrading, humiliating or offensive environment, or which otherwise adversely interferes with or affects an individual’s work performance or opportunities. According to the Equal Employment Opportunity Commission (EEOC) Guidelines, sexual harassment is defined as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Although a big proportion of sexual harassment claims are by females against males, they can also include claims by males against females, and same sex claims.

Courts have recognized two types of sexual harassment: 1) “quid pro quo” harassment, and 2) “hostile environment” harassment. Quid pro quo harassment includes harassment committed by a supervisor, unwelcome sexual conduct either implicitly or explicitly made a term or condition of employment, or when submission to unwelcome sexual conduct or advances is used as the basis for making an employment decision. Hostile environment harassment is unwelcome conduct related to a protected characteristic that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. Elements of hostile environment harassment are as follows: based on the victim’s gender (or other characteristic protected by law), offensive from both an objective and subjective perspective, sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive environment. This unwelcome conduct can be committed by anyone, including a supervisor, coworker, volunteer or even a third party non-employee such as a vendor, client, or independent contractor.

Conduct that may create a hostile work environment includes unwelcome touching, derogatory gestures, telling or emailing sexually explicit or demeaning jokes or using innuendo, suggestive comments about one’s appearance or dress, displaying literature or material that negatively depicts members of a particular group, repeated requests for a date with someone who is not interested, even in jest, and suggestive, insulting, or obscene comments. Other sexual harassment issues include sexual favoritism, sexual stereotyping, sexual harassment against men, and same sex harassment. The legal rules regarding harassment still apply to offsite functions, such as company parties, outings, business trips, conferences, and other business related social occasions. In addition, harassment through social media platforms and the internet are also against the law.

An employer is held strictly liable for harassment of an employee by a supervisor when an immediate, or successively higher, supervisor’s harassment culminated in a tangible employment action. The U.S. Supreme Court clarified the definition of “supervisor” for Title VII liability in Vance v. Ball State University as “an individual who has authority to take tangible employment action.” A tangible employment action includes discharge, demotion, reassignment with significantly different responsibilities, and significant change in benefits. However, when an immediate, or successively higher, supervisor’s harassment does not culminate in a tangible employment action, the employer may avoid liability by proving that 1) the employer exercised reasonable care to prevent and correct promptly any protected class-based harassing behavior, and 2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

An employer can be held liable for harassment by a coworker, non-supervisory employee, volunteer, or third party if 1) the employer knew, or should have known, of the harassment but unreasonably failed to stop it (such as by failing to take prompt and effective remedial action), or 2) the employer provided no reasonable avenue for complaint. For an employer to be held liable for harassment by a volunteer, there are additional requirements – the individual must first qualify as an employee under Title VII, NYSHRL, or NYCHRL. Under Title VII, the U.S. Supreme Court has not addressed whether volunteers are employees, although in the Second Circuit, remuneration is a threshold issue in determining the existence of an employment relationship. Under NYSHRL, employee protection is not extended to unpaid positions other than volunteer firefighters or interns who are expressly covered. Under NYCHRL, protection of employees does not extend to volunteers.

Employer retaliation is prohibited. Retaliation is any materially adverse action against an employee who 1) opposes discrimination or perceived discrimination, whether by making an internal complaint or bringing legal proceedings, or 2) participates in an administrative or court proceeding concerning a claim of discrimination, regardless of who brought the proceeding. If an employee experiences prohibited conduct, they should review the employer’s complaint procedure, express displeasure of unwelcome conduct, and report the prohibited conduct. Once a complaint is made, there will be an investigation and hopefully a remedial action. Examples of prohibited actions include termination, compensation impact, impact on promotion, suspension, change in job duties, and training.

It is important to remember that good intentions do not count and that actions do. It is wise to avoid conduct that could be misconstrued and to apply the same standards at offsite functions as you would apply in the workplace.

Ask yourself these five questions in figuring out whether your conduct is appropriate:

  1. Would you say it or do it in front of your spouse, significant other, mother or child?
  2. Would you say it or do it if it were going to be published on the front page of a newspaper the next day?
  3. Would you say it the same way to a member of your own sex, race, etc.?
  4. Would you act the same way with a member of your own sex, race, etc.?
  5. Why does it need to be said or done at all – what business purpose is served?

This information was assembled from a NPCC and New York Lawyers for the Public Interest workshop, presented by Joseph C. O’Keefe and Meika N. Freeman of Proskauer Rose LLP.

Last Updated: February 2018