Sexual Harassment Law: Federal, New York State, and New York City

 

Image: Carmen Caserta

 
 

Every human being has the right to a workplace - indeed an existence - free from unwanted sexual advances, demands, propositions, comments, contact, gestures, images; and any other unwelcome physical, visual, or verbal behavior of a sexual nature.

As a fashion lawyer, I feel a professional responsibility to contribute to #MeToo on behalf of women and men who have suffered sexual harassment in the fashion industry and media industries more broadly. As a woman who has endured sexual harassment in the workplace and beyond, #MeToo is personal. This article is written in support of the #MeToo and Time’s Up movements and aims to boil down sexual harassment law on the federal, state, and local levels.

My fashion law practice is based in New York City; therefore, the portions of this article discussing state and local law will be focused on sexual harassment laws in New York State and New York City. Please check your locality’s sexual harassment laws for state- and city-specific regulations.

Regardless of where you live, if you have been subjected to unwanted physical touching, coerced physical confinement, and/or coerced sexual acts, the incident might be a crime. You can file a report with your local police.

Federal

Federal sexual harassment law

On the federal level, discrimination based on sex is illegal under Title VII of the Civil Rights Act of 1964. Sexual harassment is considered a form of sex discrimination under Title VII. The Code of Federal Regulations; specifically, 29 CFR §1604.11, defines sexual harassment:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, [or]

(2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or

(3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment

Example of definition (1): Fashion Photographer offers to secure for Model a magazine spread in a popular fashion magazine in exchange for Model’s agreement to pose nude for Fashion Photographer’s personal photo collection. (This is “quid pro quo” sexual harassment and generally involves the promise of an employment opportunity in exchange for an act of a sexual or romantic nature).

Examples of definition (2): (A) Fashion Designer asks Fashion Stylist on a date. Fashion Stylist declines. In retaliation for Fashion Stylist’s rejection, Fashion Designer badmouths Fashion Stylist to fellow professionals in the fashion industry. (B) Dance Choreographer threatens to demote Dancer to a less prominent role in an upcoming dance production unless Dancer performs a sexual act for the benefit of Dance Choreographer. (C) Theatre Director casts only stage actors who show Theatre Director romantic interest through behaviors such as flirting and/or sexual favors.

Example of definition (3): Makeup Artist is constantly describing her sexual encounters to Fashion Model while Makeup Artist does Fashion Model’s makeup during fashion shows, making Fashion Model feel uncomfortable on set. (This is referred to as “hostile work environment”).

Employers covered under Title VII sexual harassment law

Title VII applies to private employers as well as federal, state, and local government agencies. Title VII applies only to workplaces with fifteen (15) or more employees.

Filing a sexual harassment complaint under Title VII

If you work in a company or government agency with fifteen or more employees, and you have been subjected to sexual harassment, contact the Equal Employment Opportunity Commission (EEOC).

The EEOC is an agency of the federal government responsible for enforcing federal sexual harassment law and has the authority to investigate claims and bring lawsuits. You cannot file a lawsuit in federal court under Title VII until you first file a complaint with the EEOC. Please review this important information on how to contact the EEOC. In most cases you have 45 days from the date of the incident to contact an EEO Counselor.

NEW YORK STATE

New York State sexual harassment law

Sexual harassment in the workplace is illegal under New York State Human Rights Law (NYSHRL) §296.1

Facts about New York State sexual harassment law:

  • The perpetrator can be a supervisor, co-worker, or non-employee such as a client or vendor.

  • New York State Human Rights Law (NYSHRL) protects against harassment based on gender identity or transgender status.

  • Harassment on the basis of sexual orientation - whether actual or perceived - is prohibited by the New York State Orientation Non-Discrimination Act (SONDA).

  • Retaliation for making a complaint about sexual harassment is illegal.

  • The law protects both men and women and includes incidents in which the perpetrator and victim are the same sex, regardless of sexual orientation.

This literature published by the New York State Division of Human Rights describes the behaviors New York State considers to be sexual harassment. In relevant part:

  • ...“hostile environment” consists of words, signs, jokes, pranks, intimidation or physical violence...of a sexual nature

  • ...unwanted verbal or physical advances, sexually explicit derogatory statements, or sexually discriminatory remarks...which are offensive or objectionable to the recipient, which cause the recipient discomfort or humiliation, or which interfere with the recipient’s job performance

  • ...“quid pro quo”...occurs when a person in authority tries to trade job benefits for sexual favors. This can include hiring, promotion, continued employment or any other terms, conditions, or privileges of employment.

  • The law requires that the behavior be severe or pervasive...one joke or comment may not be enough to be sexual harassment. However, courts have held that a single incident could be considered sexual harassment depending on the circumstances.

New sexual harassment legislation in New York State

In April 2018, New York State enacted extensive new sexual harassment legislation. New laws include: 

  • Effective immediately, an expansion of the law to protect non-employees such as vendors, clients, and consultants from workplace sexual harassment (§296-d).

  • Effective April 12, 2018, a section making complicit employers liable for workplace sexual harassment perpetrated against non-employees such as vendors, clients, and consultants

  • Effective July 11, 2018, a prohibition on non-disclosure provisions in sexual harassment settlement agreements, unless the person bringing the claim prefers there be a confidentiality clause

  • Effective July 11, 2018, a prohibition on mandatory arbitration clauses in claims of sexual harassment

  • Effective October 9, 2018, a requirement that employers adopt sexual harassment policies and prevention training programs

Employers covered under New York State sexual harassment law

For purposes of sexual harassment claims, New York State Human Rights Law (NYSHRL) §296.1 applies to all employers; i.e., the number of employees in the workplace does not matter.

Filing a sexual harassment complaint under New York State law

Consider the following avenues for reporting:

  1. Report the harassment to the person designated by your workplace to receive sexual harassment complaints

  2. Consult an attorney

  3. Contact the New York State Office of the Attorney General (OAG) Civil Rights Bureau

  4. Contact the NYS Division of Human Rights (SDHR). Learn about filing a complaint here. You must fill out and file this complaint form.

You are urged to act quickly, as each agency has varying time limits on bringing sexual harassment claims.

NEW YORK CITY

Sexual harassment law in New York City

Sexual harassment in the workplace is illegal under New York City Human Rights Law (NYCHRL). In May 2018, Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act, extensive new sexual harassment legislation encompassing eleven new sexual harassment laws. Notably:

  • In cases of gender-based harassment brought under NYC Human Rights Law, the statute of limitations for reporting has been increased from one year to three years.

  • Where sexual harassment law under NYC Human Rights Law previously applied only to employers with at least four (4) employees, the law has been expanded to apply to all employers without regard to number of employees.

The New York City Commission on Human Rights defines sexual harassment as “...unwelcome verbal or physical behavior based on a person’s gender and can include:

  • unwanted touching;

  • offensive and suggestive gestures or comments;

  • asking about a person’s sex life or making sexualized remarks about a person’s appearance;

  • sexualizing the work environment with imagery or other items;

  • or telling sexual jokes.”

Employers covered under New York City sexual harassment law

Sexual harassment complaints under the NYC Human Rights Law may now be brought against employers without regard to number of employees.

Filing a sexual harassment complaint under New York City Human Rights Law

Report sexual harassment to the NYC Commission on Human Rights. Call (718) 722-3131 or fill out an online complaint form.

(This article is not meant as legal advice and is written for educational purposes only. If you need legal services, please contact an attorney.)