What Is My Company Required to Do to Protect Its Employees Against Sexual Harassment?
Sexual harassment is a form of gender discrimination, which is prohibited under federal law and many state and local laws, including the New York Human Rights Law and the New York City Administrative Code. The act of harassment itself, which generally involves some unwanted sexual conduct, is carried out by individuals in the workplace, like supervisors, co-workers, customers or vendors. But the responsibility for those actions does not rest with the individuals alone. Your employer has a responsibility to prevent sexual harassment in the workplace and respond when sexual harassment occurs.
In this post, we’ll talk about the responsibilities of employers to protect their employees from sexual harassment, including requirements placed on employers by state/local and federal law. If you have been the victim of sexual harassment at your job and are concerned that your employer is not doing enough to address it, please contact Eisenberg & Baum. We have an experienced group of sexual harassment attorneys who are ready to help and advocate on your behalf.
When Can an Employer Be Held Liable for Sexual Harassment?
An employer’s liability for sexual harassment can depend on who did the harassing. If a supervisor or someone with managerial or supervisory authority engaged in the harassing conduct, the employer will generally be liable for that supervisor’s actions. If, on the other hand, someone other than a supervisor or manager engaged in the harassing activity, the employer will be liable if it knew or should have known about the harassment and failed to take steps to prevent it.
If you are an employee, it is important to know the standards by which your employer will be held liable for sexual harassment. Employees must speak up when they feel they are being sexually harassed by telling their supervisor or a human resource representative. An employer can’t prevent what it doesn’t know about, and even if you don’t believe your employer will act to stop the harassment, you will have difficulty moving forward with your sexual harassment claim if you have not first made your employer aware of the issue.
Employer Responsibilities
Fundamentally, federal law, the New York Human Rights Law, and the New York City Administrative Code require employers to provide their employees with a workplace free from discrimination, including sexual harassment. Though the laws don’t lay out many specific details about how employers must act to prevent and address sexual harassment complaints, there are a couple of basic requirements as well as some generally accepted practices that many employers use to address the issue.
Notice of Anti-Discrimination Laws
Federal law requires that certain employers take measures to address discrimination in the workplace, including sexual harassment, and properly respond when employees make discrimination claims.
The federal laws governing sexual harassment generally apply to employers with 15 or more employees. State and/or local laws may have a stricter standard. All employers subject to the federal laws are required to post a notice that describes the federal anti-discrimination laws, including the prohibition of gender discrimination. The Equal Employment Opportunity Commission (EEOC) has prepared a poster for employers that summarizes those laws and explains how employees can file discrimination claims with the agency. Employers should display the poster in a location where it will be easily seen by employees and where other notices are typically posted. The EEOC also encourages employers to make the notice available to their employees electronically.
Recordkeeping
In addition to the notice requirements, federal laws and regulations also require employers to maintain employment records for at least one year and payroll records, in particular, for three years. Employment records can be critical in a sexual harassment claim, both for the employer and employee, and the mandatory retention period can help ensure that evidence of the employee’s claim and the employer’s response are preserved. If the employee files a formal claim with the EEOC, the employer is further required to preserve any records relating to the incident until the claim is fully resolved.
Policies and Procedures
Though neither federal law nor New York state law explicitly requires an employer to adopt a sexual harassment policy and procedure for handling claims, the EEOC strongly suggests employers adopt such policies and procedures. The EEOC’s guidance on sexual harassment encourages employers to “take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.” To accomplish that, the EEOC recommends employers adopt a policy that explicitly prohibits sexual harassment. Once an employer has adopted a sexual harassment policy, they should communicate it regularly to their workforce and, perhaps most importantly, ensure that they are enforcing the policy when employees raise concerns.
The EEOC further recommends that employers adopt procedures for handling sexual harassment complaints made by their employees. The procedure should be designed with the victim in mind and not create barriers that could discourage the victim from coming forward with their complaint. Adopting the procedure and sticking it on the shelf is not enough, though. When an employer receives a sexual harassment complaint from an employee, it should follow its own policies and procedures, thoroughly investigating the complaint and, where it finds sexual harassment occurred, taking actions to stop the harassment and fix the damage done to the victim.
Protect Yourself and Your Co-workers
Employers have a duty to ensure that their workplace is free from sexual harassment. As an employee, you have the right to expect your employer to not only educate its employees about sexual harassment but also to swiftly and thoroughly address any sexual harassment complaints you raise. If you believe your employer is not sufficiently educating its employees about sexual harassment, we encourage you to speak with your supervisor or human resources department about your concerns. If you’ve been the victim of sexual harassment at your job and feel your employer has not effectively responded to your complaint, please contact us. Eisenberg & Baum’s attorneys have decades of experience handling sexual harassment cases and can help you understand the merits of your claim and advise you on your next steps. We offer free initial consultations f
or sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.
One of the biggest concerns any victim of 
Although the law protects an employee from retaliation after filing a discrimination claim, the employee generally continues to be subject to their normal terms of employment. In addition, employees in most states, including New York, are considered to be employed “at will” by default, meaning they can be terminated from their job for any reason or no reason at all, as long as that reason is not illegal. As a result, an employee who has filed a discrimination complaint may still be subject to discipline or other adverse employment actions for reasons that are not discriminatory or illegal, but employers have to be very careful in this area. If an employee can connect an adverse action taken against them back to their employment discrimination complaint, they will have a retaliation claim on top of their discrimination claim against the employer.
Finally, in order to create a hostile work environment, the conduct must be so severe or pervasive that it affects your job. Typically, an employee would need to show a pattern of harassment to meet this requirement, though in some instances a single act can be severe enough on its own to establish a hostile work environment. For example, a single, isolated instance of a co-worker telling an insulting joke may not be either severe or pervasive enough to establish a hostile work environment, but a single instance of a co-worker physically coercing an employee to participate in sexual conduct could be seen as so severe that the conduct, on its own, created a hostile work environment.