When nude pictures make their way onto the factory floor, or start to spread through the office chat system, it can easily turn a happy work day into an uncomfortable event. But is pornography at work sexual harassment? Can you report it without having to worry about retaliation?

In this blog post I will review a complaint filed by the EEOC against Protocol Restaurant based in part on claims that the owner distributed pornography at work. I will review the definitions of sexual harassment and a hostile work environment. I will also discuss employees options when inappropriate pictures make the rounds at work.

Pornography in the Workplace: Sexual Harassment Waiting to Happen

Pornography can pop up anywhere. Whether you work in an auto-body shop or an executive office, you may have coworkers who view or share pornography on the job. They may hang inappropriately sexualized images around the shop floor, or send nude photos over email or the office chat system. Maybe they keep it as a background image or screen saver on their own computers, or play videos with disturbing sexual audio in their cubicles.

No matter the form it takes, pornography at work is a sexual harassment problem waiting to happen. Unless you work in a very particular industry, there is no reason for any employee to be viewing pornography at work. Most companies explicitly ban the practice in their employee handbooks. But that doesn’t mean employees aren’t sneaking it in and using it in ways that make their coworkers uncomfortable.

Sexual harassment under Title VII of the federal Civil Rights Act can happen any time comments or behavior based on a person’s sex or gender make it hard for them to work, or create a hostile work environment that would make a reasonable person uncomfortable on the job. The presence of pornography at work can very easily create a hostile work environment by raising issues of sex, sexuality, and lewd behavior where they have no purpose. When an employee’s objections about the presence of sexual images go unanswered, the employer’s silence can create the basis for a sexual harassment lawsuit.

EEOC vs. Protocol Restaurant Takes on Pornography at Work

That’s what happened when the Equal Employment Opportunity Commission (EEOC) sued Protocol Restaurant in Buffalo, New York for sexual harassment. The lawsuit accuses Paul Pelczynski, the restaurant’s owner, of a variety of sexually offensive conduct targeting the women who worked for him, including:

• Unwelcome sexual advances
• Repeated invitations for drinks
• Offers to share hotel rooms
• Comments about their bodies
• Grabbing their bodies
• Kissing them
• Brushing up against them
• Displaying pornography at work
• Sending pornographic group texts

When the restaurant’s female employees complained or told Pelczynski no, they were fired. Others quit because they could no longer put up with the sexualized and hostile work environment.

Finally, some of Protocol’s employees turned to the EEOC for help. After attempts at pre-litigation settlement failed, the agency filed suit in EEOC v. Protocol of Amherst, Inc., Civil Action No. 1:19-cv-00598 in U.S. District Court for the Western District of New York, Buffalo Division. The lawsuit seeks damages on behalf of the employees including:

• Back pay
• Compensation for harm caused by the sexual harassment
• Punitive damages based on the severity of the conduct
• Changes to company policy to prevent future sexual harassment at work

Jeffrey Burstein, regional attorney for the EEOC’s New York District Office said in a statement:

“Owning a business is not a license to sexually harass employees. . . . Business owners have a duty to protect employees from sexual harassment, and the EEOC is prepared to take strong action where an owner abuses his authority.”

Retaliation for Reporting Porn at Work

Even though pornography has no place at work and is against most company policies, employees are still often hesitant to report it. That is especially true when the person sending out the images is a manager, supervisor, or owner (like Pelczynski). Just like in the Protocol case, employees worry that if they call out their bosses for sexually inappropriate imagery they are going to face retaliation, suffer even more sexual harassment, or even lose their jobs.

The good news is that the same state and federal laws that protect against sexual harassment, including pornography at work, also prevent employers from retaliating when an employee complains. Even if you weren’t the one negatively affected by the images, the law says that your employer may not discipline you for speaking out. When it does, you have the right to file a claim with the EEOC or in state or federal court.

Extra Protections for New York Employees Against “Revenge Porn”

Having to endure any naked bodies when you are trying to work is hard enough. But when you are the subject of the photos it can be humiliating. Many victims of so-called “revenge porn” at work find themselves resigning rather than facing coworkers who have seen them exposed.

That’s why New York City and New York State have each passed laws making it a crime to distribute nude pictures of another person without his or her consent. Section 10-177*3 of the NYC Administrative Code makes distributing, or even threatening to distribute revenge pornography at work a criminal misdemeanor with a penalty of up to one year in jail.

On the state level, using intimate pictures or video to humiliate someone or cause them emotional, physical, or financial harm is a Class A misdemeanor, punishable by up to 1 year in prison and a $1,000 fine. The state law also gives the victims of revenge porn the power to sue their harassers, and in some cases their employers, for the harm caused. They can also get a court order to get the pictures taken down from social media or workplace servers, to help them repair their reputation and move past the humiliating event.

Pornography has no place at work. But when it finds its way there anyway, employees need to know there are laws to protect them. At Eisenberg & Baum, LLP, our experienced sexual harassment attorneys know how to use federal and state anti-discrimination laws and local and state revenge porn laws to get you the protection and compensation you need. We can meet with you at our headquarters in the heart of New York City, or conference with you remotely, to help you plan a strategy to put an end to pornography at work. Contact Eisenberg & Baum, LLP, today to talk to a sexual harassment attorney.