Tag: Title VII

New York Sexual Harassment Law

New York Sexual Harassment Law Covers All Employers

The New York Human Rights Law prohibits sexual harassment in all workplaces across the state. The law also bans other forms of discrimination and harassment by employers with at least 4 employees. But, in 2015, the law was amended to extend the protection against sexual harassment to all employers of any size.

Under federal law, Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, including sexual harassment, in employment in organizations with at least 15 employees.

Treating New York Sexual Harassment Differently

The Sponsor’s memorandum proposing that sexual harassment be prohibited in all workplaces emphasized New York’s historic role in promoting women’s rights:

“New York State has a proud history and tradition of leading the nation in progressive ideas and reforms, especially in respect to women’s rights. In 1848, the Women’s Suffrage Movement was born at the first Women’s Rights Convention in Seneca Falls, New York. From that moment in time, and continuing through today, this State has been the home of female leaders and visionaries, from Elizabeth Cady Stanton who initiated the first organized women’s rights and women’s suffrage movements, to Audre Lorde, a leading African American poet and essayist who gave voice to role models for not only their generation, but for all future generations.”

It then expressed concern that the State should renew this tradition:

“Over the years, New York has fallen behind in its role as a progressive leader on women’s rights. Statistics clearly show that women in New York State are not treated equally to men. This legislation will reverse that trend.”

What Is “Sex”?

The New York sexual harassment law may also be broader than federal laws, as State regulations now expressly define the term “sex” to include gender identity and the status of being transgender.

Indeed, the State regulations specifically provide that “Harassment on the basis of a person’s gender identity or the status of being transgender is sexual harassment.”

Forms of Sexual Harassment

Under the Human Rights Law and Title VII, there are two forms of sexual harassment:

“Hostile work environment” harassment consists of comments, acts, conduct, behavior, etc., of intimidation, humiliation, or ridicule of a sexual nature or based on an individual’s sex. For more, read What Makes Workplace Harassment Unlawful?.

“Quid pro quo” harassment involves a request for sexual activity in exchange for favorable job treatment. Whereas a hostile work environment can exist based on any protected characteristics (e.g., race, religion, age), quid pro quo harassment can only apply to sexual harassment.

When Is an Employer Liable for Sexual Harassment?

Employers are strictly liable when an owner or high-level manager commits unlawful harassment. This means the employer cannot defend itself by arguing it was not aware of or responsible for the harassment. (It could still contest whether harassment occurred.)

Employers may also be strictly liable for sexual harassment by lower-level managers and supervisors with sufficient control over the working conditions of the victim.

In cases of harassment by coworkers or lower-level managers with no direct control over the victim’s working conditions, employers may only become legally responsible when they knew or should have known about the harassment. For example, if an employee reports harassment by a co-worker, and it nonetheless continues, then the employer may be liable.

Avoiding Liability

The best approach is to take reasonable precautions and prevent sexual harassment before it happens. This primarily occurs through training of all employees, including supervisors.

But employers do not always have perfect control over what their employees do. So when there is concern that someone has crossed a line, the employer must act prudently to ensure that the behavior stops. The first step to accomplishing this is having an effective complaint procedure. The second step is investigating all complaints thoroughly. The third step is taking appropriate remedial action based on the investigation.

[Sign up for my free webinar on Investigating Workplace Harassment Complaints Without Making It Worse.]

Individual Liability

The New York Human Rights Law, unlike Title VII, also permits individuals to be found directly liable for sexual harassment. This can affect both employees who commit sexual harassment and supervisors who ignore their duty to investigate and remedy it.

No Retaliation

When employers receive complaints of sexual harassment, they must ensure that no one retaliates against the person who made the complaint, the victim of harassment, or any other employees involved in bringing the complaint forward.

Investigators must remind the subjects of harassment investigations that they cannot retaliate. Any retaliation that nonetheless occurs must be taken seriously.

Retaliation includes any negative action, not just formal job-related consequences. It can even include action outside of the workplace and things done after the employee has left employment.

Penalties

Employees have up to 3 years to file sexual harassment claims in New York. Under the Human Rights Law, an aggrieved employee can recover lost wages and benefits (backpay and frontpay), emotional distress, and compensatory damages. Unlike Title VII, the Human Rights Law does not cap potential emotional distress damages. However, the Human Rights Law does not provide for punitive damages like Title VII does.

Generally, attorneys’ fees are not available under the Human Rights Law’s employment provisions. However, recent amendments now permit the prevailing party to obtain an attorney’s fee award in sex discrimination cases only. This includes New York sexual harassment cases.

Be Prepared

No employer wants to deal with allegations of sexual harassment. But even the best-run organizations must be proactive to avoid it.

This includes having a well-written anti-harassment policy and conducting periodic training. It also includes being ready to investigate promptly and effectively.

Individuals within an organization who are responsible for investigating sexual harassment should obtain appropriate training. One resources is this free webinar, where I discuss My Top 7 Tips for Performing this Unenviable Task That Everyone Wishes Wasn’t Necessary

 

Trick or Treat Sexual Harassment

Workplace Trick or Treat: Sexual Harassment

Sexual harassment is a hot topic in the media these days. Frankly, it’s hot in more than one sense. In the “hot potato” sense, in that no one really wants to touch it. But also in terms of these definitions of “hot” from Merriam-Webster: “of intense and immediate interest” and “marked by violence or fierceness.”

Trust me, I don’t want to be talking about sexual harassment myself. Mostly because I wish it didn’t happen.

I’m not here to give a personal story. I’m not a victim. But I do have experience dealing with claims of sexual harassment. This actually dates back to college, where I was not only involved in investigating student sexual harassment allegations, but also in training other students to investigate them. Fortunately, I guess, there weren’t that many investigations. But, on the other hand, what does that mean? Were there too many not coming forward?

Because I’m now an employment lawyer helping employers do the right things and protect themselves, I’m focusing on the workplace here. But, of course, sexual harassment, assault, and abuse also affects many other aspects of our lives.

Sexual Harassment: The Laws

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment because of sex (among other characteristics). Harassment is a form of discrimination. Thus, Title VII prohibits sexual harassment in the workplace.

Outside of the employment context, Title IX of the Education Amendments of 1972 prohibits sexual harassment (and other forms of sex discrimination) in educational programs and activities.

Most states also have employment discrimination laws that make sexual harassment unlawful.

Sexual assault is also illegal, of course. It can be both a criminal offense and a civil one (a tort). Beyond employment discrimination laws, employers could, in some cases, be held legally culpable for enabling, permitting, tolerating, etc., sexual assault.

Read here for more on What Makes Workplace Harassment Unlawful?

More Than a Legal Problem

The recent media attention on sexual harassment and assault identifies some high profile perpetrators. They may be celebrities. They may be wealthy. Regardless, they usually have jobs (or run their own businesses).

Sexual harassment and assault are wrong in themselves and in a million ways. But let’s just consider the employment context. What are some negative impacts?

Let’s face it, sexual harassment isn’t good for morale. Even unintentional, relatively minor instances (I’m not trying to define them here) can permeated the workplace. They may only upset one employee. Or one employee can tell another, and people get uncomfortable. An otherwise respected boss or co-worker falls out of favor (probably rightly so, though some are occasionally falsely accused).

Unfortunately, not all cases of sexual harassment are reported to human resources or others in the organization that could hopefully do something about it. But the ones that are demand action. That requires resources (time, money, etc.) that companies would rather be able to spend elsewhere. We can’t blame this on the victims. The blame is on those behaving inappropriately. But, nonetheless, we can all agree it would be better if there were no harassment to be investigated in the first place.

What’s the Fix?

Sexual harassment is wrong, and it’s bad. That doesn’t mean it’s easy to cure. But it also doesn’t mean we shouldn’t try.

Briefly, here are some basic elements every employer should implement:

  • Anti-harassment policy
  • Training all employees
  • Additional training for supervisors
  • Effective complaint procedures
  • Designated compliance officers
  • Prompt investigations
  • Effective remedial action

Additional steps may be appropriate for some employers. These could include, for example, conducting workplace satisfaction surveys, expanding the human resources team, and other initiatives to promote pervasive professionalism.

Don’t Ignore It

I hope the recent public disclosures and related dialogue about this subject will help reduce sexual harassment. But no one should assume it can’t happen to them or in their organization.

Employers and their management teams must take the lead to put out any flames before they spread. The financial motivation itself is real. Some legal settlements have recently been reported to reach the range of $32 million to a single victim. Most employers would not survive that loss, or even anything close. The public relations backlash could be even worse.

But, most important, people must live with themselves and sleep at night. That alone is reason enough not tolerate harassment on our watch.

Employment Law by the Numbers

U.S. Employment Law by the Numbers

There are probably many lawyers who went to law school because they don’t like dealing with numbers. I’m not one of them. So, I thought I would address some of the most significant numbers in employment law.

Many of these numbers establish thresholds, especially for coverage issues. But others are caps, dates, or other parameters.

(If you prefer words, click here for my free Employment Law Dictionary.)

1 – Employee threshold for many employment laws

One is the number of employees an employer must have before being covered by the federal minimum wage and overtime laws. It also establishes coverage for many other federal laws, including immigration, health and safety, and labor law requirements. So, if you have just one employee, you’re already responsible for employment law compliance.

$7.25 – Minimum wage

This is the current nationwide minimum wage for most employees under the Fair Labor Standards Act (FLSA). Many states and some cities have higher minimum wage requirements for their employers.

11 – OSHA recordkeeping threshold

Non-governmental employers with at least 11 employees must maintain records of serious work-related injuries and illnesses.

12 – Annual FMLA leave allowance, in weeks

The employer can determine what 12-month period counts as a year for its employees. The best option is usually a rolling year measured back from the date on which a particular employee will use the leave. Other options include the calendar year, the employer’s fiscal year, or a forward rolling year from the date the employee first takes FMLA leave.

15 – Several federal discrimination laws kick in

Employers with 15+ employees are subject to Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA). Title VII prohibits discrimination because of race, color, sex, religion, and national origin.  The ADA prohibits discrimination against qualified individuals with disabilities and requires employers to make reasonable accommodations. GINA prohibits discrimination based on genetic information, which is broadly defined.

20 – ADEA and COBRA coverage

The Age Discrimination in Employment Act (ADEA) prohibits discrimination because of age for employee 40 years of age or older.

Employees with at least 20 employees also become subject to COBRA insurance continuation requirements. COBRA entitles employees and/or their families to continue their group health insurance coverage for up to 18-36 months (depending on circumstances) after employment ends. The employees usually pay the coverage.

40 – FLSA overtime/ADEA age thresholds

Under the FLSA, employers must pay non-exempt employees overtime once they work more than 40 hours in a work week. The overtime rate must be at least time-and-a-half the employee’s regular rate.

As mentioned, employees also become protected by the ADEA when they turn 40.

50 – Affordable Care Act, FMLA, and WARN coverages

Employers with 50+ “full-time equivalents” qualify as large employers under the Affordable Care Act. This triggers various requirements, including the obligation to provide affordable health insurance to employees (or pay a penalty).

The Family and Medical Leave Act (FMLA) applies to employers with at least 50 employees.

The Workforce Adjustment Retraining Notification Act (WARN) requires employers to give written notice before mass layoffs and plant closings that will cause employment loss for at least 50 employees, sometimes more.

60 – Days in advance WARN notices must be issued

The employer must notify not only the affected employees (or their unions), but also certain government officials. There are exceptions to the notice obligation. If circumstances require the employer to act suddenly, the employer usually must give as much notice as possible.

75 – FMLA geographic proximity requirement

To become eligible for FMLA leave, among other conditions, an employee must work within a 75-mile radius of at least 49 other employees.

100 – WARN and EEO-1 thresholds

Non-governmental employers with 100 or more employees are potentially subject to WARN notice obligations and also must file annual EEO-1 reports. (Many federal contractors must file EEO-1 reports even if they have less than 100, but more than 50 employees.)

The EEO-1 form reports on company employment data by race/ethnicity, gender and job category. Read more about the status of EEO-1 reporting here.

$455 – Required weekly salary for some FLSA exemptions

To qualify for the most common FLSA exemptions, employees must receive a salary of at least $455 per week. The U.S. Department of Labor tried to increase this to $913 per week in 2016. Courts rejected that change, as has the current administration in Washington, which is reviewing an alternative approach.

1250 – Required annual hours worked for FMLA eligibility

If an employee has not worked 1250 hours for the employer in the past 12-months, they are not eligible to take FMLA leave.

$100,000 – “Highly compensated employee” exemption

The FLSA has special exemption rules for employees who receive at least $455/week in salary and $100,000/year in total compensation. These employees may be exempt even if they don’t satisfy the full standard exemption tests.

$300,000 – Highest cap on Title VII damages

Employers with more than 500 employees may be liable for up to $300,000 in compensatory and punitive damages for violations of Title VII’s anti-discrimination provisions. The caps are lower for employers with fewer employees: 15-100 employees = $50,000; 101-200 employees = $100,000; 201-500 = $200,000.

Some state employment discrimination laws have no caps. Thus, employees often sue under both state and federal laws to maximize their potential recovery.

No caps apply to damages for lost wages/benefits or attorneys fees under Title VII.

Employment Law Is Daunting

It’s not just the numbers. Employment law relies on many complicated words and phrases too. I’ve written a concise Employment Law Dictionary to help with that. Get your free copy here.