Sexual Harassment in the Workplace
Sexual harassment has been a workplace issue for decades but in recent years became high profile in the media during the #MeToo movement. As a result, the New York legislature passed a law in 2019 extending the statute of limitations for workplace harassment claims from one to three years. A statute of limitations is a time limit for filing a claim or lawsuit. For sexual harassment, you have three years from the date that the last sexual harassment incident occurred to file a claim in the state of New York. When filing with the EEOC (federal government agency) the statute of limitations is shorter—300 calendar days from when the sexual harassment took place.
If you wait longer than the time limitation to file, you can lose your right to pursue a lawsuit.
NY law also prohibits employers from requiring employees to sign non-disclosure agreements that would prevent them from filing harassment or discrimination lawsuits. Another significant change in NY sexual harassment was the change in a previous standard regarding conduct. Previously, conduct had to meet the standards of “severe or pervasive” to be challenged in court as a form of harassment or discrimination. A victim of harassment would have to prove that the harassment was severe or that it was ongoing in order to have a valid case. This requirement no longer exists, which has also changed the definition of a “hostile work environment.”
What Is Sexual Harassment?
Sexual harassment at work is unwelcome sexual conduct directed toward an employee regardless of the employee’s gender. Examples of sexual harassment include:
- Demand for sexual favors
- Offensive sexual remarks
- Unwanted physical contact
- Sexual innuendos
- Sexual gestures
- Sexual jokes
- Social media posting with sexual comments
There are two main types of discrimination that occur involving sexual harassment. One falls under the category of a hostile work environment.
Hostile Work Environment
Under federal law, to prove that a hostile work environment existed you must prove that “severe and pervasive” sexual harassment occurred that a reasonable person would consider abusive, hostile or intimidating. However under New York law, you have a lesser burden of proof and only must prove that the conduct was not a frivolous inconvenience or a petty slight.
Quid Pro Quo
Quid pro quo is a Latin term that literally means “this for that.” In the context of sexual harassment, it refers to sexual favors in exchange for some benefit or to avoid unfavorable treatment. Examples would include having to exchange sexual favors to avoid demotion, a pay cut or job reassignment. In contrast, it could also include sexual favors demanded for obtaining a promotion, pay raise or other benefits.
Our Legal Focus
What Is Sex Discrimination?
Sex discrimination, also called gender discrimination or sexual discrimination is a broader category of discrimination than sexual harassment. Sexual harassment is a specific type of sex discrimination. According to the EEOC (Equal Employment Opportunity Commission), gender discrimination in the workplace is unfavorable or inferior treatment based on a person’s sex. The federal, NY State and NYC governments prohibit sex discrimination in the workplace, including discrimination based on transgender status and sexual orientation. This type of discrimination has taken place during advertising, hiring, firing, layoffs, promotions, demotions, wages, fringe benefits, job assignments, training or other employment conditions or terms.
Unequal pay based on sex is a form of sexual discrimination. Pregnancy discrimination is also a form of sex discrimination. Any sex-based disparate treatment would be a violation of federal, state and NYC discrimination laws. The statute of limitations for filing a sex discrimination claim (other than sexual harassment) is one year from the last incident of sex discrimination.
You can click on the following links to read summaries of several cases our firm handled that were based on sex discrimination:
Under New York law, employers must have sexual harassment policies that include a system for reporting discrimination in the workplace. Many employers will take actions to correct sex discrimination or sexual harassment when employees notify them that it is occurring.
However, there are also instances where employers fail to take corrective action. Other instances may involve employers who take action but do not consider the situation serious enough to take effective action. Even worse, some employers engage in retaliation against employees who notify them of discriminatory incidents. If you have experienced any of these situations, you should consult with a sexual harassment lawyer.
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