New York State employers are held to both federal and State standards when it comes to sexual harassment laws and regulations. While New York requires mandatory annual training for all employees and training should help employees understand how to behave, it’s important for employers to also have practical takeaways to avoid potential claims.
What is Sexual Harassment?
The federal Equal Employment Opportunity Commission (EEOC) has established two types of sexual harassment claims: (1) quid pro quo and (2) hostile work environment.
Quid pro quo involves a demand for sexual favors in exchange for some benefit, such as a promotion, pay increase, or to avoid termination or a demotion. This harassment usually but not always involves a person in a position of authority. Stated simply, it’s a workplace bribe around sex.
Under federal law, hostile work environment harassment involves conduct that is so severe and pervasive that it creates an intimidating and demeaning workplace environment and subsequently affects the victim’s job performance. While this conduct may be committed by a supervisor, it can also be a peer, subordinate, or even a vendor, customer, or contractor. Examples include inappropriate touching, sexual jokes or comments, repeated requests for dates, or a display of offensive or inappropriate images in the work environment. New York law is even more demanding: even one example can create a basis for a sexual harassment claim so long as it’s not a petty slight or trivial inconvenience.
To summarize, sexual harassment can be any unwelcome sexual advance, requests for sexual favors, and other verbal or physical conduct implicating sex when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. Also, misgendering an employee is an example of sexual harassment in New York.
How To Know if Sexual Conduct is Unwelcome
The U.S. Supreme Court has made clear that, in accordance with the federal law known as Title VII, a victim’s voluntary participation in sexual activity is not a defense for the aggressor. The relevant question is whether the advances were welcomed. The EEOC has considered whether a victim “welcomed” sexual conduct by looking at multiple factors related to the victim’s conduct. In a situation where an employee initially engaged in a consensual (welcomed) sexual relationship, but subsequently asserted that sexual conduct was unwelcome and resulted in a hostile work environment, the burden falls on that employee to demonstrate that the subsequent sexual conduct was indeed unwelcomed. When assessing conflicting evidence of “welcomeness” related to circumstances of sexual exchanges, the EEOC will assess the totality of the circumstances and evaluate each situation on a case-by-case basis.
Beware, however, that the New York standard is far more employee-friendly, and it bears emphasis.
Who Qualifies as a Harasser?
Anyone can be deemed a harasser—whether it is the victim’s supervisor, a co-worker, or a client – or even a vendor. The harasser does not have to be of the opposite sex of the victim. New York law emphasizes that anyone coming onto the workplace premises can be deemed a harasser, and employers are well-advised to demand that their vendors do annual sexual harassment prevention training too.
Who Can Bring a Claim?
It’s important to note that a claim doesn’t have to arise from the intended victim. Rather, anyone who witnesses the behavior – even if they weren’t the intended target – has a claim. So even where two coworkers are willingly engaging in a sexually-explicit discussion, a coworker who walks by and overhears them may be offended and can, in fact, file a claim. Moreover, the victim doesn’t need to have an “economic injury” or have been fired in to bring a claim.
What Happens When There’s a Claim?
While claims can be defeated under the right circumstances, sometimes the evidence of wrongdoing is persuasive. For example, recently Chipotle settled a claim that had been brought by the EEOC when it accused Chipotle of ignoring repeated reports of sexual harassment from workers. As the EEOC announced, Chipotle settled the claim for some $400,000, with the EEOC contending that:
Chipotle permitted the three young crew members, including one who was only 17 years old at the time, to be harassed by their 29-year old service manager and subsequently by a 24-year old coworker. The harassment included the manager sexually assaulting the underaged employee and touching another worker’s buttocks. He also made unwelcome sexual comments and requests for sex, and isolated employees by trapping them in the restaurant’s walk-in refrigerator—blocking their exit—and caused them to fear for their safety.
What’s the Best Way to Avoid Sexual Harassment Risk?
No one wants to be featured in an EEOC press release. So what’s a responsible employer to do?
Education and communication are the best tools to avoid sexual harassment in the workplace.
Straightforward steps you can take:
- Ensure your team receives annual sexual harassment prevention training
- Enforce the sexual harassment prevention training for all employees
- Appoint an internal coordinator to review reports or claims of sexual harassment
- Implement anti-discriminatory policies and procedures that prohibit sexual harassment and retaliation
- Provide additional sexual harassment training to HR investigators on how to conduct sexual discrimination and harassment investigations
- Promptly and thoroughly investigate reports of claimed sexual harassment
- Identify trusted legal counsel who can guide you through a risk assessment.
Our goal at The Coppola Firm is to empower our employer clients to know the law and comply with it in their everyday activities.
If you have questions about sexual harassment, including the NYS mandatory annual training for all employees, give us a call.