Question

When can an employee assert a legal claim that s/he was sexually harassed in the workplace in New York?

William H. Kaiser - Employment Litigation - Super Lawyers

Answered by: William H. Kaiser

Kaiser Saurborn & Mair, P.C.
New York, NY
Phone: 212-338-9100
Fax: 212-338-9088

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Answer

As a preliminary matter, if you work for a company with at least fifteen employees you may have a legal claim under the Federal discrimination law, Title VII, irrespective of the State in which you are employed. If your employer employs four or more employees, you may also have additional claims under the civil rights laws of New York State, pursuant to New York State Executive Law § 296, et seq. and New York City, pursuant to New York City Administrative Code §§8-107, 8-502.

It is easier to satisfy the legal standard for sexual harassment under New York City law than under New York State and Federal law because pursuant to the New York City Administrative Code, the conduct complained of need not be nearly as severe or pervasive as would be necessary to qualify as sexual harassment under New York State law and Title VII. Under New York State and Federal law, the alleged victim must allege that the conduct was severe and/or pervasive.

There are, however, some important factors that are common to all three jurisdictions. All courts will examine the severity and frequency of the complaint of conduct. For example, isolated remarks that are not repeated or only infrequent will typically be insufficient to sustain a sexual harassment claim. On the other hand, if the sexual harassment includes physical contact a court may well determine that very few or even a single instance is sufficient to support a legal claim. It is likely that fewer instances of sexual harassment will satisfy New York City’s broad legal standard.

Sexual harassment directed at either males or females is equally unlawful under Federal, State and City law.

In order to maintain a legal claim against your employer, generally speaking you must show that your employer was aware of the conduct but took no actions to end it. For example, if you are harassed by a co-worker or a low-level supervisor but higher level management is not provided notice that the conduct is occurring, it will be more difficult to assert a legal claim against the employer. If, however, the employer does not maintain a written sexual harassment policy that is properly communicated to its employees, the employer may be automatically responsible for any sexual harassment that occurs in the workplace. The bottom line is that if you believe you are the victim of sexual harassment, complaining in writing to persons in positions of responsibility is important.

Under Federal law, you cannot assert a sexual harassment claim against individual employees of the employer such as your manager. However, under New York State and New York City law you can sue your manager and possibly other responsible employees individually for the sexual harassment to which you were subjected.

Finally, it is separately unlawful for your employer to retaliate against you for complaining in good faith of sexual harassment. For example, if you complain in good faith of sexual harassment and then consequently suffer a retaliatory adverse employment action such as a demotion, an unfair and false performance appraisal or a termination, you may assert a legal claim for retaliation even if your underlying sexual harassment claim is found to be legally insufficient.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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