What statutes protect against sexual harassment?

By Douglas Lipsky

How do different statutes define sexual harassment?

An employee working in New York City can bring a sexual harassment claim under three statutes: the federal law called Title VII of the Civil Rights Act of 1967; the New York State Law called the New York State Human Rights Law; and the New York City law called the New York City Human Rights Law. Each of them have different thresholds and remedies.

What are the different tests for sexual harassment?

Title VII and the NYSHRL prohibit same-sex sexual harassment. The complained of conduct satisfies the statutory threshold if the conduct is (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s sex. The threshold,importantly, is not that environment be “unendurable” or “intolerable.”It is less: the conduct need only “alter the conditions of the victim’s employment.”

The crux of any sexual harassment claim is that the alleged conduct is “unwelcome.” The correct inquiry, in examining this, is whether the plaintiff indicated that the conduct was welcomed, “not whether [his] actual participation in [the conduct] was voluntary.” This issue is particularly important when the harasser is a supervisor. The Second Circuit recognizing that inherent power balance, explained a “supervisor’s conduct is equally unlawful under Title VII whether the employee submits or not . . . We do not read Title VII to punish the victims of sexual harassment who surrender to unwelcome sexual encounters. Such a rule would only encourage harassers to increase their persistence.”

Within this framework, a Southern District court held the following conduct, which spanned three years,constitutes actionable sexual harassment: a direct supervisor repeatedly invited the plaintiff to his house, made comments about her body, expressed romantic feelings towards her and expressed a desire to “hug her.”

Another district courtheld the following conduct constitutes sexual harassment. There, the manager initiated the sexual relationship with the plaintiff, which escalated from occasional touching to oral and sex. The company defended these claims, arguing the plaintiff never complained and the relationship was consensual. The court swatted away those arguments by recognizing the power imbalance when a manager is harassing a subordinate and explaining, though the plaintiff never complained, “it was his fear of losing his job that prevented him from doing so.” The court went on to stay, while the sex was “not necessarily forced, neither was it invited.”

The Second Circuit provides a final, powerful guidepost. After discussing the severe or pervasive threshold, the Court stated, “Direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment . . . When entering a workplace, reasonable people expect to have their autonomy circumscribed in a number of ways; but giving up control over who can touch their bod[ies] is usually not one of them.”

New York City law also prohibits sexual harassment in the workplace. SeeN.Y. City Admin. Code § 8-107. An employee’sburden is much lower under the NYCHRL than under Title VII and the NYSHRL. To sufficiently assert a claim under this law,an employee must show only that he or she was“treated less well than other employees because of [his or her] gender.” No requirement exists, under the NYCHRL, that the conduct be “severe” or “pervasive.” The City Council, in fact, made clear, the NYCHRL is to be “liberally applied.”The Court of Appeals likewise instructs courts to“construe [the NYCHRL] . . . broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Given this low burden, a district court recently held this standard was met because the defendant’s comments made plaintiff feel “uncomfortable” and the majority of the comments were sexual in nature.

What the damages I can recover for sexual harassment?

Under Title VII and the NYCHRL, an employee can recover damages for lost wages, emotional distress damages, punitive damages and can recover their attorneys’ fees. Under the NYSHRL, an employee can recover the same damages except for punitive damages and attorneys’ fees.

If you have questions about sexual harassment or believe you are the victim of sexual harassment, you should contact one of our sexual harassment lawyer specialists.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.