How Do I Know if I Have a Sexual Harassment Claim in New York?
Getting harassed at work with sexual comments or behavior can leave any employee feeling isolated and helpless. When you’re the victim of such harassment, you might have difficulty recognizing it in the moment and try to tell yourself it’s no big deal to get through your day. But sexual harassment in the workplace continues to be a very real issue and can impose a heavy toll on victims both in the quality of their work as well as their mental and sometimes physical well-being. Sexual harassment does not need to be tolerated by its victims, who have the protection of state and federal laws here in the State of New York.
In this posting, I’ll discuss the elements of a sexual harassment claim in New York. If you have experienced what you believe to be sexual harassment at your job, these elements can help you determine whether you have a legal claim. If you’d like more guidance on your rights, contact Eisenberg & Baum. We have an experienced group of New York sexual harassment attorneys who are ready to help and advocate on your behalf. See media coverage about just a few of the people we’ve helped.
Federal and New York Laws
Sexual harassment is a form of gender discrimination and is prohibited under both Title VII of the federal Civil Rights Act of 1964 as well as the New York Human Rights Law. New York City has also adopted its own law prohibiting sexual harassment. The definition of sexual harassment across these laws is very similar: sexual harassment consists of unwelcome sexual conduct that either creates a hostile work environment or is used a basis for employment decisions.
What is “Unwelcome Sexual Conduct”?
There are two things to be aware of when it comes to this element of sexual harassment. The conduct must be of a sexual nature and be unwelcome. The conduct itself can be verbal (e.g., sexually offensive jokes or requests for sex acts) or physical (e.g., groping or sexual assault).
Your response to the conduct will help indicate whether it was unwelcome. If, for example, you participated in the activity by responding with your own offensive comments, jokes or innuendos, it can be difficult to prove the conduct was unwelcome unless you felt coerced or obligated to do so in order to maintain your job. On the other hand, if your response showed you objected to the conduct either directly to the harasser or otherwise through your employer, the conduct is much more likely to be considered unwelcome.
Effect of the Conduct
Unwelcome sexual conduct in the workplace on its own is not enough to qualify as sexual harassment. The conduct must either have been offered as a quid pro quo (in exchange for some employment action) or have created a hostile work environment for the victim.
Quid Pro Quo
A quid pro quo claim typically arises when a person in a higher position at work requires an employee to put up with or participate in some sexual conduct in return for a favorable employment decision, like awarding benefits or simply ensuring continued employment. For example, a supervisor requesting sexual favors from an employee in exchange for giving that employee a promotion would be considered quid pro quo sexual harassment.
Hostile Work Environment
Even if the sexual conduct is not offered directly in return for some benefit to the employee, it can still be considered sexual harassment if it is severe enough to create an intimidating, hostile or offensive work environment. Typically, an employee would need to show a pattern of harassment to establish the existence of a hostile work environment, though in some instances a single act can be severe enough to create such an environment. Courts will look at a number of different factors to determine whether the harassment resulted in a hostile work environment, including who engaged in the conduct as well as the frequency and egregiousness of the conduct.
Who Can Commit Sexual Harassment?
You may think sexual harassment can only occur where a supervisor is harassing one of their employees. However, sexual harassment can come from almost anyone in the workplace, including supervisors, coworkers, customers and vendors. While quid pro quo claims are typically based on actions by supervisors, a hostile work environment can be created by any of these sources in the workplace. Also, the person engaging in the sexual conduct does not need to be the opposite gender of the victim. The person engaging in the conduct can be a man or woman and can be the same or a different gender from the victim.
Who Can Be a Victim of Sexual Harassment?
On the same note, both men and women can be victims of sexual harassment. The law prohibits discrimination on the basis of gender without regard to a specific gender. Often the victim is the person to whom the sexual conduct was directed, but that does not necessarily have to be the case. Any employee in the workplace who is affected by the sexual conduct can bring a sexual harassment claim, even if the conduct was not directly aimed at them. The employee will still need to meet the elements required of any sexual harassment claim, and typically in the case of an employee who was indirectly subjected to unwanted sexual conduct, that claim will be based on the hostile work environment theory.
What Do I Do if I’m Being Sexually Harassed at Work?
If you believe you’ve been sexually harassed at work, you should report the harassment immediately to your employer, if you have not done so already, and contact an attorney. Eisenberg & Baum’s attorneys have decades of experience handling sexual harassment cases in New York and can help you understand the merits of your claim and advise you on your next steps. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.