Sexual harassment can have devastating effects on an employee. It can affect the employee’s performance at work, their ability to move up through their organization or even keep their job, and their overall mental and physical well-being. We’ve talked in a number of previous posts about how to recognize when you have a sexual harassment claim at work and what types of remedies you can expect. Sexual harassment is illegal and can be the basis for a civil lawsuit by an employee to regain lost benefits and pay and monetarily punish a responsible employer.

While employees have the ability to seek relief and damages for sexual harassment in the workplace, the laws providing for these remedies do not make sexual harassment a crime. That’s not to say, however, that the harassing conduct cannot also qualify as a crime. In this posting, we’ll talk about some of the situations in which sexual harassment can also be a crime and what a victim should do in those situations.

What Is Sexual Harassment?

Sexual harassment is a form of gender discrimination prohibited under both Title VII of the federal Civil Rights Act of 1964 as well as the New York Human Rights Law. New York City has also adopted its own law prohibiting sexual harassment. 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 a basis for employment decisions.

Sexual conduct, for purposes of sexual harassment law, can include both verbal and physical actions, from requests for sexual favors to unwanted touching and sexual acts. For a more detailed discussion of what is sexual harassment, read our prior posting, “How Do I Know if I Have a Sexual Harassment Claim in New York?”

When Is Sexual Harassment Also a Crime?

In some instances, such as rape, it may be obvious to a victim of sexual harassment that the conduct they’ve endured is not only illegal workplace discrimination but a crime. In other situations, such as when an employee has been verbally harassed, it may not be as clear. Whether conduct at work is considered a crime depends on the local criminal laws where you live and whether the conduct meets the definition of a crime under those laws. Below we outline a few examples of the types of crimes under New York law that can be violated when an employee is sexually harassed at work. These crimes can vary from basic misdemeanors to violent felonies, depending on the severity. As a result, the punishments could range from a simple fine to many years in prison.

Rape, Sexual Abuse and Forcible Touching

You likely know that forced sexual intercourse without a person’s consent is considered rape and is a crime. The law also criminalizes other types of sexual contact with a person without their consent. Under New York law, the crime of sexual abuse can include any touching of a person’s intimate body parts without their consent, whether that touching is over or under the victim’s clothing. Similarly, forcible touching is a crime when the perpetrator intentionally and forcibly touches the victim for their own gratification or to degrade or abuse the victim. Again, the touching can be over or under the victim’s clothing. In the context of sexual harassment in the workplace, criminal conduct could therefore include pinching or groping, as well as more severe non-consensual sexual acts, by a co-worker or supervisor.

Assault

The physical contact between a harasser and their victim may not always be of a sexual nature. In some instances, harassing co-workers or supervisors can seek to intimidate their victims through pushing, hitting, or other physical conduct. When an employee is injured as a result of this conduct, the harasser can commit the crime of assault under New York law. Assault can come in varying degrees of severity depending on the intent of the assailant, whether they used a weapon, and how badly the victim was injured.

Menacing

Even if a victim is not injured by their harasser, if the harasser physically threatened them, their actions could be criminal in New York. The crime of menacing, under New York law, occurs when a person intentionally places their victim in fear of imminent injury or death by physically threatening the victim. The menacing act must be physical, not just verbal, and could include showing a weapon or other threatening gestures.

Stalking

Sexual harassment often involves a pattern of behavior, like repeated phone calls or texts. This type of repetitive conduct can fit with the definition of criminal stalking. Stalking, under New York law, is when a person intentionally engages in a course of conduct that makes the victim reasonably fear for their safety or the safety of someone else. The conduct behind stalking might include physically following the victim, repeated unwanted calls or messages, or following the victim’s activities online. Even seemingly innocent gestures like sending a gift could be part of a stalking case if the overall context of the harasser’s behavior would reasonably lead to the victim fearing for their safety.

Unlawful Imprisonment

Unlawful imprisonment, or false imprisonment, may not sound like it can apply to workplace sexual harassment, but in fact there are some situations where it can. Simply put, unlawful imprisonment is the restraint of another person. Specifically, under New York law, a person commits this offense when they intentionally restrict someone else’s movement in a way that substantially limits their liberty. The restriction could be either confining the victim or moving the victim from place to place. In the case of workplace sexual harassment, the harasser could intimidate their victim, either physically or verbally, into staying in a location like an office, a car, or hotel room in order to subject them to offensive conduct.

What To Do If You’ve Been the Victim of a Crime

If you believe you’ve been the victim of not only discrimination but criminal conduct and want to pursue charges, report it to your local police department immediately. Unlike a civil sexual harassment claim which you can pursue individually, the state is responsible for investigation and prosecuting criminal matters and will assist with your criminal claim. We also encourage you to contact Eisenberg & Baum if you need help understanding your legal rights and remedies as a victim of sexual harassment. Our attorneys have decades of experience handling sexual harassment cases in New York and are ready to help you with your claim. 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.