Definition of Harassment

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Harassment is one of those words that can be used in a number of different ways in life, but has a very specific meaning in the law. In life, you might say that telemarketer that always calls at the same time every evening is harassing you. When you go to a baseball game, you may sit next to a fan who verbally harasses the visiting team every time they get up to bat. At work, you might find the supervisor who regularly sends you off-hour work questions and requests to be harassing. In these general ways, we use the term harass and harassment to refer to annoying behavior that’s repeated over and over.

In legal terms, harassment has a much narrower meaning. In this post, we’ll discuss the definition of workplace harassment under the law and how it can differ from what you may think of as harassment in your everyday life. We’d also encourage you to read last week’s post for some examples of harassment in the workplace.

Eisenberg & Baum has years of experience handling workplace harassment cases. We’re based in New York City and have attorneys licensed in many states throughout the country; we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we can help you understand your own workplace harassment case no matter where you are.

Harassment Definition Under the Law

Harassment can be a form of employment discrimination under various federal, state and local laws. Workplace harassment is considered discriminatory and is unlawful when an employee suffers unwelcome conduct based on a protected trait and either the employee had to endure the conduct in order to keep their job or the conduct was so severe and pervasive it created a hostile work environment. We’ll talk about each of the main elements of workplace harassment below.

Unwelcome Conduct

Workplace harassment must include some form of unwelcome conduct. The conduct can be verbal (e.g., offensive jokes and slurs) or physical (e.g., groping or pushing), and the person or people doing the harassing can be almost anyone in the workplace, including a supervisor, co-worker, contractor or customer. Another key to the conduct is that it must be considered unwelcome. An employee’s conduct will help show whether the conduct was considered unwelcome. In some cases, such as when an employee is subjected to racial slurs and reports the incident immediately, this part can be relatively easy to show. In other situations, whether the conduct was unwelcome may not be as obvious. For example, an employee who claims they were sexual harassed because their co-workers repeatedly told sexually explicit jokes at work may have difficulty proving the conduct was unwanted if they participated in the activity by responding with their own offensive comments and jokes.

Protected Characteristics

In order to be considered discrimination, the unwelcome conduct must be based on some protected trait. Under federal law, those traits include race, color, national origin, gender, pregnancy, age, religion, disability, and genetic information. Many state and local governments have enacted similar anti-discrimination laws, like New York State’s Human Rights Law, which prohibits discrimination on grounds similar to those protected under federal law as well as sexual orientation, marital status, gender identity, arrest and conviction record, military status or service, observance of Sabbath, political activities, unemployment status, and status as a victim of domestic violence.

Harassing behavior directed at an employee for reasons other than these protected characteristics is not grounds for an employment discrimination claim. So, if you have a co-worker who makes fun of you because you have a collection of troll dolls on display in your office or a boss everyone considers overbearing and a micro-manager, you may not be happy at work, but you don’t necessarily have a discrimination claim based on harassment.

Severe and Pervasive

Another key element to a workplace harassment claim is the impact the harassment has on the employee. In order to be considered discriminatory under the state and federal law, the harassing conduct either has to become a condition of continued employment or has to be so severe or pervasive that it creates an environment a reasonable person would find intimidating, hostile, or abusive (also known as a hostile work environment). In some cases, the harassment is so blatant that it is clearly tied to the continued employment of the employee being harassed. A typical example of this would be a sexual harassment case in which a supervisor requires an employee to endure the harassment in exchange for keeping their job. However, under the New York City Human Rights Law, the element of severe and pervasive need not be proven for liability.

More frequently, the conduct is not clearly tied to continued employment, so the employee must demonstrate a hostile work environment was created by the conduct. This typically requires something more than an offhand remark by a co-worker. An employee might consider a single incident, like an offensive joke told by a co-worker, to be harassing in the general sense, but under the state and federal law the activity is not considered harassment unless it is so severe and pervasive it creates a hostile environment. An employee generally needs to show a pattern of harassment to establish the existence of a hostile work environment. Also, the conduct must be considered from the viewpoint of a reasonable person. Even if an employee is particularly sensitive to remarks by their co-workers, the law will still look at whether a reasonable person in that employee’s shoes would have found the remarks severe and pervasive enough to create a hostile environment.

Get Legal Help

If you feel you’re being harassed at work but aren’t sure whether the conduct is harassment under the legal definition, please contact Eisenberg & Baum. We’ll talk with you about the facts of your case and help you understand your legal options going forward. We offer free initial consultations for employment discrimination claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

What Are My Remedies if I Sue for Discrimination at My Job?

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We talked recently about how employment discrimination victims can use their discrimination claims to make a lasting and effective change to their employer’s policies and practices. But what other types of remedies can discrimination victims recover through their claim? Depending on the case, employment discrimination can result in a variety of injuries to the victim, from financial to emotional. The general goal of state, local and federal anti-discrimination laws is to make the victim whole, allowing them to be compensated for the variety of injuries they suffer.

We’ll outline the various types of remedies that can be available in a claim under Title VII of the federal Civil Rights Act and the New York State and New York City Human Rights Laws. If you have questions about your own discrimination claim and what remedies may be available to you, please contact Eisenberg & Baum. We have decades of experience helping victims of employment discrimination recover damages and other relief in New York and around the country.

Pay and Benefits

Very often, workplace discrimination can result in the victim being fired, passed over for a promotion, or denied pay increases or bonuses. Under Title VII and the New York State and New York City Human Rights Laws, victims of discrimination are entitled to recover back pay, front (or future) pay and benefits denied them as a result of the discrimination. Take, as an example, a female employee who is continually passed over for a promotion to a position for which she was otherwise qualified because she was a woman. If the employee successfully shows that her employer engaged in gender discrimination in denying her a promotion, she could be entitled to the difference in pay she would have received if she had been promoted. Similarly, if an employee is wrongfully terminated because of their gender, race, religion or other protected classification, the employee could recover back pay, front pay, as well as compensation for other benefits, like medical insurance, to which the employee would have been entitled if they’d not been fired.

Compensatory and Punitive Damages

Victims of discrimination can also suffer financial as well as physical and emotional damages beyond the direct loss of pay or benefits. These types of damages are known as compensatory damages and can include things like medical expenses, the cost incurred in finding a new job and damages from emotional distress. It’s not uncommon for a victim of discrimination, especially discrimination that has occurred over a long period of time, to suffer emotional injuries as a result of the discrimination. In some cases, such as sexual harassment, the employee may suffer physical injuries as well. Compensatory damages for these types of injuries are recoverable under Title VII as well as New York State and City Human Rights Laws. Some compensatory damages can be hard to value but can be a crucial part of ensuring a discrimination victim is made whole.

Punitive damages, on the other hand, are a way of punishing the employer and deterring similar acts of discrimination in the future rather than restoring the victim. Punitive damages are allowed under Title VII and the New York City Human Rights Law but not under the New York State Human Rights Law. Even where they are allowed, they are not commonly awarded because they are reserved for particularly bad acts by employers.

We’ve lumped compensatory and punitive damages together in this section because under Title VII, there is a cap on the total combined amount of compensatory and punitive damages that can be awarded. The size of the cap depends on the size of the employer, ranging from $50,000 on the small side to $300,000 on the large side. New York State law, while not allowing for punitive damages in a discrimination case, does not cap the amount of compensatory damages a victim can recover. New York City law does not cap either compensatory or punitive damages.

Injunctive and Affirmative Relief

As we discussed in our recent blog post on changing your employer’s policies, one of the remedies available to discrimination victims is injunctive relief. Courts can grant injunctive and affirmative relief under Title VII and the New York State and City Human Rights Laws to require an employer to take some action to remedy the discrimination. In our earlier example in which the female employee was repeatedly passed over for promotion because of her gender, it’s possible that the court, in addition to awarding the victim monetary damages, could order the employer to promote the employee to the position they were wrongfully denied. In a situation where an employee was wrongfully terminated on a discriminatory basis, the court could order the employee re-hired.

Costs and Fees

Inevitably, when you pursue a legal claim, you are bound to incur some court costs and attorney’s fees. However, you are not required to pay Eisenberg & Baum, LLP any fees unless we collect money from settlement or judgment. Then the fees will come out of the recovery. For cases where a judgment is obtained, an application for legal fees can be filed under federal or city law. Whether you can recover court costs and attorney’s fees can depend on the law under which you prevailed. Title VII of the Civil Rights Act and the New York City Human Rights law both allow for a prevailing plaintiff to recover their court costs and reasonable attorneys fees, while the New York State Human Rights Law does not. When your attorney works on a contingency fee basis like Eisenberg & Baum, courts will still calculate the attorney’s fees award based on the reasonable number of hours worked on your case multiplied by a reasonable hourly rate for the work performed.

You Can Be Made Whole

Unfortunately, there is no way to completely undo the effects that workplace discrimination can have on an individual. But federal, state and local laws do include a number of different forms of remedies for discrimination victims to pay them for the financial and emotional loss they’ve suffered and place them in the position they would have been had they not been discriminated against. If you’ve been discriminated against at work, please contact us to discuss your case and the remedies that may be available to you.

Can I Have a Sexual Harassment Claim if It Happened Away From Work?

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Not all interactions with your co-workers and supervisors occur inside the walls of your workplace during normal working hours. More and more, our interactions extend beyond the walls of our workplace because we are now more connected than ever through social networking and other forms of communication. Many employees are now working remotely from their home, while others make the road their office, traveling between client sites or conferences. No matter where you are, though, sexual harassment by your co-workers and supervisors does not have to be tolerated. Employers can and have been held liable for the discriminatory actions of its employees well beyond the old water cooler.

In this posting, we’ll discuss the basic requirements of a sexual harassment claim, including when and where such harassment can occur, and give some examples of sexual harassment cases that occurred outside of the workplace. If you’ve been sexually harassed by a co-worker or supervisor in or outside of the workplace and would like to discuss your legal options, please contact Eisenberg & Baum. We have an experienced group of New York sexual harassment attorneys who are ready to help and advocate on your behalf.

What is Sexual Harassment?

Sexual harassment is a form of gender discrimination that is prohibited under federal law as well as many state and local laws, like the Human Rights Laws of New York State and New York City. The definition of sexual harassment across these laws is very similar: sexual harassment consists of unwelcome sexual conduct that either creates a hostile work environment or is used as a basis for employment decisions.

Where Can Sexual Harassment Occur?

What the law does not typically limit are the place and time where the harassment can occur. In fact, courts in New York and beyond have looked at activities outside of the typical office environment to support findings of sexual harassment against employers. If the harassing activity can be shown to be related to the employment relationship, even if it took place beyond the workplace and normal work hours, it could be grounds for a sexual harassment claim.

Examples of Sexual Harassment Outside of the Workplace

Travel and Outside Events

While not all interactions with co-workers and supervisors outside of the workplace can be grounds for a sexual harassment claim, courts have consistently found employers liable for sexual harassment that occurred during business travel and other outside work-related events. In the 1995 federal appellate court case of Tomka v. Seiler Corporation, a female employee alleged she was sexually assaulted by a supervisor after a dinner she attended while away at a client’s site. The court determined that the employer could still be liable for sexual harassment and retaliation under the federal Civil Rights Act and the New York Human Rights Law even though the assault occurred beyond the normal work environment.

In a more recent federal district court case, Parrish v. Sollecito, a female employee alleged she was sexually harassed by a manager while attending a funeral reception for a co-worker’s relative. Although the employee reported the conduct to her employer, no action was taken against the manager. The New York federal district court hearing the case found the employer liable for sexual harassment under the hostile work environment theory, extending the work environment to the funeral reception because the employee attended the reception as a result of her employment relationship.

Texting, E-Mail and Social Media

Sexually Harassed by TextingInteraction between employees outside of the workplace is no longer confined to restaurants, bars and other events. When anti-discrimination laws were first enacted decades ago, lawmakers could not have envisioned the various methods of electronic communication being used today, from email and texting to Facebook and Twitter, people now have countless ways of staying in contact both during and outside of work. Though the law may not have been specifically designed with these newer forms communication in mind, courts have shown that the law can still be applied to them.

For example, in a 2010 case brought by the Equal Employment Opportunity Commission against Fry’s Electronics, the EEOC alleged that a Fry’s store manager sexually harassed an employee when he texted her sexually explicit messages and invited her to his house for a drink. The employee’s supervisor reported the harassment, and in return Fry’s fired the supervisor. Fry’s wound up settling the case with the EEOC, agreeing to pay damages to both the employee and her supervisor and making policy changes to help prevent future incidents.

Beware and Get Legal Help

No matter if you’re in the office, at a happy hour event, on business travel, or in the confines of your own home, sexual harassment can occur almost anywhere. If you’ve been the victim of sexual harassment by a co-worker or supervisor outside of work, report it to your employer immediately and get legal help. Eisenberg & Baum’s experienced sexual harassment attorneys are ready to discuss the merits of your case and advise you on your next steps. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.