HR Alert: Beware New York’s Lower Standard for Sexual Harassment Claims

Check out our blog. We cover everything from car accidents to employment law and other hot legal topics.

Start the Conversation Today

  • Home
  • Blog
  • Business
  • HR Alert: Beware New York’s Lower Standard for Sexual Harassment Claims

For business owners, it’s important to understand the legal standards applied to claims that can be brought against you and your business. That’s why it’s critical to appreciate that there are two different laws – federal and New York State – with two different standards – that can judge sexual harassment claims in New York. Workplace sexual harassment, discrimination and retaliation are governed by both federal AND New York State law.

The federal law is known as Title VII and the State law is known as the New York Human Rights Law.

Let’s look at both of them, so you’re well-armed about what they mean.

What’s the standard for federal sexual harassment claims?

Under Title VII, a winnable claim for sexual harassment exists when the improper conduct is severe or pervasive enough to create a work environment that a reasonable person would consider to be hostile or abusive. Petty slights and isolated instances usually don’t rise to the level of being sexual harassment, according to judges. The courts focus mainly on this idea of severe and pervasive conduct being what’s needed to prove a claim for sexual harassment. Usually, courts will require a claimant to show that the behaviors happened frequently and were serious enough in nature to hold the actor, and their employer, liable for money damages under Title VII.

What’s the standard for New York sexual harassment claims?

In contrast, under the New York Human Rights Law, a plaintiff only needs to demonstrate that because of their gender, they were treated less favorably than other similarly-situated employees and, as a result, were subjected to inferior terms and conditions of employment. The objectionable behavior under NY law doesn’t need to be severe or pervasive for it to be actionable. Instead, it only needs to be unwanted, gender-based conduct. Even one incident can be enough to state a claim under NY law. On the other hand, it’s rare that a single incident – unlessly grossly objectionable – is enough under Title VII.

Like Title VII, however, petty slights or trivial inconveniences don’t rise to the level of sexual harassment, even in New York.

Why are these differences so important?

If you’re a NY-based business, or you have employees in NY, or you manage or supervise employees in NY, then you’ll typically be judged under the NY standard. That means that gender-based behaviors of a sexual nature or alluding to sex – even if just one of them – may very well be enough to create a claim for liability. You’ll usually be judged under this NY standard of behavior if your employee comes forward with sexual harassment claims against you or your business. Some business owners and managers presume that to be a real sexual harassment case, the complained-of behavior must be severe and persuasive – but that’s simply incorrect. Conduct that’s far less blatant and far less extreme can constitute sexual harassment in New York.

The law in action – Mitura v. Finco Services, Inc.

In this recent New York-based case, a downstate federal court spent part of its opinion correcting the defendants which had tried to get the claimant’s case thrown out of court. But the court set them straight, saying they were ill-advised to believe that allegations of “nothing more than mere sporadic, insensitive comments” weren’t good enough to establish a sexual harassment claim.

Indeed, they were.

Even though the case was being heard in federal court, the court pointed out that the severe and pervasive standard didn’t apply because the claimant also alleged damages under the New York Human Rights Law.

As we’ve discussed, under NY law, all the claimant needs to do is meet the lower, NY standard. In Mitura, the defendants allegedly commented that the claimant was an “old woman with no kids” and disparaged her body after she was diagnosed with breast cancer. When the defendants tried to get the claim dismissed, the court rebuffed them, saying that this claimant had alleged a sufficient case in the first instance. Whether she’ll ultimately win her case was left for another day. But comments about her age and breasts – even if sporadic and even if not pervasive – were enough to allow her case to stand.

Key takeaways

In New York, the standard for a sexual harassment claim is not severe and pervasive conduct. Instead, the employee need only allege that they were the subject of unwanted gender-based conduct – and that can be words, actions, jokes, images, photos, or even sexual-sounding noises (When Harry Met Sally, anyone?).

They don’t need to prove that these conditions happened frequently or were severe. Rather, they need only allege behaviors having to do with, or implicating, sex in order to have their case heard in court.

This reduced standard which overwhelming supports employees means that NY employers must be even more vigilant in ensuring that no unwanted conduct or behavior based on gender or sex occurs in your workplace.

How to avoid claims

  1. Keep your eyes and ears wide open. Don’t allow even vague references to sex, sexual conduct, or sex-based behaviors to occur at work.
  2. Communicate – and enforce – your Zero Tolerance policy against sexual harassment.
  3. Ensure that your policy is in writing and distributed across your workforce – and get each employee to acknowledge receipt in writing.
  4. Annually train your employees about sexual harassment prevention; after all, that’s the law in NY too.

Questions or concerns?

If you’re a business struggling with NY law or have a concern about a situation with your workforce, call us. We’re happy to discuss your circumstances at any time. Call or email us at 716.839.9700 or

Moreover, we offer a easy-to-deliver virtual sexual harassment prevention training at It’s available 24/7.

We’re here to help businesses across New York State with simple, accessible guidance and no-nonsense practices. Contact us anytime.

Lisa Coppola

Written by Lisa Coppola

Founder of The Coppola Firm

Lisa A. Coppola, Esq. understands the challenges her clients face, whether they’re starting a new business, taking their existing operations in a new direction, or facing a claim or threat.

Blog Categories


Speak With the Lawyers at The Coppola Firm

NAICS Code: 541100

© The Coppola Firm
Attorney Advertising. Prior results do not guarantee a future outcome.

Call Us Now Message Us