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How Can I Protect Myself from a Hostile Work Environment?

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Having to face the challenge of going to work each day in a hostile work environment can take a toll on you. Your work product, health and personal relationships can suffer when you are the target of harassment at work. You shouldn’t have to worry about jokes, slurs, touching and other unwanted conduct on top of your job duties. So how can you protect yourself from a hostile environment at work? Fundamentally, you should know that it’s your employer’s responsibility to create and maintain a workplace free from harassment, and it should never be considered the victim’s responsibility to avoid illegal harassment. However, there are some steps we recommend that can empower you to minimize the chance of a hostile work environment, and even if one exists, that will help you deal with it quickly and effectively.

If you’d like to talk with someone about your own hostile work environment claim, contact Eisenberg & Baum. We have a group of very experienced employment discrimination attorneys who can help you understand your claim and advise you of your rights under the law.

Know Your Rights

The first step to protection as an employee is knowing your rights under the law. We’ve spent a lot of time on our blog talking about employment discrimination and the idea of the hostile work environment. A “hostile work environment” is a specific type of employment discrimination claim under federal and state law, and it is created when you experience unwelcome conduct that is so severe or pervasive it affects the terms of your employment. We commonly think of a hostile work environment in terms of sexual harassment in which co-workers or supervisors subjecting an employee to repeated unwanted sexual conduct, including inappropriate comments, pictures and touching. However, a hostile work environment can be based on a number of different legally protected characteristics, not just gender.

Harassment at WorkUnder federal law, employees are protected from discrimination based on their race, color, national origin, gender, pregnancy, age, religion, disability, and genetic information. State and local laws in your area can protect you based on additional characteristics. For example, in New York City employers are prohibited from discriminating against an employee on similar grounds as recognized 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. To learn more about hostile work environments, read our prior post on “What Is a Hostile Work Environment.”

Discrimination Policies and Training

One of the most common and easiest things an employer can do to help prevent discrimination in the workplace is to adopt a policy against discrimination and a thorough process for reporting and investigating claims of discrimination, then train employees and management on the subject. If you notice your employer does not have these policies and processes in place or what they do have does not sufficiently address workplace discrimination, we recommend you talk with your employer. A strong set of policies and training can help educate all employees about what is and is not appropriate conduct at work and reduce instances of harassment and discrimination. Having an explicit procedure for reporting and investigating discrimination claims encourages victims to speak up when they have a complaint and can show that the employer takes such complaints seriously and responds with action when needed. When you contribute to a better set of policies and procedures at work, you not only help yourself but your co-workers, managers and employer. Try talking with your supervisor or if you’re uncomfortable talking with your supervisor, try another member of management or a human resources team member.

Confront, Report and Document

If you are already experiencing harassing behavior that is disrupting your ability work, it’s time to take action. If you’re comfortable with the idea, let the harasser or harassers know clearly and directly that you want them to stop what they’re doing. Whether it’s a supervisor who is belittling you because of your age or a group of co-workers who like to share stories about their sexual experiences in the open, let them know that their behavior is making you uncomfortable and you want them to stop. If you are afraid to confront your harasser directly, maybe because they’ve physically threatened you, then we encourage you to talk with your supervisor or human resources contact. Even if you’re not directly affected by harassing conduct at work, if you witness it, say something. This is your chance to help change the culture at your job. By reporting harassing conduct at work, you can protect the victim and everybody else at work, including yourself, from future harassment.

In addition to reporting any instances of harassment, there are other steps you can take at work to protect yourself when you’re in the midst of a hostile work environment. You can start making sure that your story is heard and supported by having co-workers around you when you encounter your harasser. Your harasser might be less bold around other people, and if they’re not, you will at least have witnesses to their conduct. Also, you can begin taking notes of your interactions with your harasser. Make sure you’re as detailed as possible in describing when, where and how your encounters with your harasser happened, and take the notes as close as possible to each event so that your memory is still fresh. These notes can help in your employer’s investigation and in any future legal action you may have to take.

Finally, we don’t recommend retaliating against your harasser. This could cloud your employer’s investigation or a court’s determination of your original claim and potentially subject you to liability. Use the resources you have at work and under the law to report and stop the discriminatory conduct against you.

Contact an Attorney

If you find your employer isn’t appropriately responding to your complaints, contact an attorney. An experienced employment discrimination lawyer can help you get the resolution you need, whether that requires filing a charge with the Equal Employment Opportunity Commission or a lawsuit in federal or state court. A lawyer can help advise you of your legal rights and options as a victim of workplace discrimination. Eisenberg & Baum’s employment discrimination attorneys have decades of experience handling hostile work environment and other employment discrimination claims, and we encourage you to contact us for a free initial consultation. For employment discrimination and retaliation cases, we bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.

Sexual Harassment and Racial Discrimination Lawsuit Against McDonald’s

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Last year, McDonald’s and one of its franchisees faced an employment discrimination lawsuit that may be a sign of things to come. The lawsuit, brought by employees of McDonald’s franchises in Virginia, claimed both the franchisor and the franchisee were liable for alleged race and gender discrimination committed by supervisors at the restaurants. While the case settled, it along with recent labor law developments provide an interesting current look at employment discrimination cases in the fast food franchise business.

We’ll discuss the allegations in the recent discrimination lawsuit against McDonald’s and the changing landscape of franchisor liability for the employment actions of franchisees, specifically in the context of violations of anti-discrimination laws. If you’d like to talk with an attorney about your own employment discrimination claim, please contact Eisenberg & Baum. We have a group of employment discrimination attorneys with years of experience handling discrimination claims.

The Allegations of Employment Discrimination Against McDonald’s

Eleven former employees brought the employment discrimination case against McDonald’s and its franchisee, Soweva Co., in federal court in Virginia. The legal basis for their claim was Title VII of the federal Civil Rights Act of 1964, which prohibits discrimination against employees based on their sex, race, color, national origin, or religion. The allegations in the McDonald’s case included both race and sex discrimination claims.

Racial Discrimination

The former employees in the case were all either African-American or Hispanic. The group alleged they’d been discriminated against on the basis of their race, having been harassed and wrongfully terminated on that basis. Please check out our prior blog posts on harassment and wrongful termination for more information about those types of claims.

The harassing conduct allegedly engaged in by the employees’ supervisors included offensive jokes, racial slurs, and a different disciplinary standard than their white counterparts. The employees alleged that, ultimately, the franchise owner decided to decrease the number of African Americans working at his restaurants and targeted them in a mass termination that impacted mostly African American employees. The employees say that, when asked why they were being fired, the owner explained they “didn’t fit the profile” he wanted.

Sexual Harassment

In addition to their racial discrimination allegations, the former employees claimed that their supervisors had also engaged in activity that constituted sexual harassment. Sexual harassment is a form of gender discrimination prohibited under Title VII. For a broader discussion of what constitutes sexual harassment, you can read our prior blog post on how to identify when you have a sexual harassment claim.

Among other allegations, the former McDonald’s employees claimed that supervisors at their workplace made inappropriate comments about employees’ bodies, sent and showed employees inappropriate pictures, touched female employees on their legs and buttocks, and attempted to solicit sexual activity with employees.

Holding a Franchisor Liable for Employment Discrimination

McDonald’s operates under a franchise business model, meaning that the vast majority of McDonald’s restaurants are not actually owned by McDonald’s USA, the franchisor, but by independent franchisees. Many other fast-food restaurant chains, like Subway, Wendy’s, Jack in the Box and Taco Bell, work under a similar model. For many years, franchisors have seen the franchise model as a way to guard against liability for employment law claims under the argument that the franchisee is truly responsible for employment decisions and matters. While this has been accepted in many labor and employment law cases, there has also been an exception for those situations where the franchisor and franchisee are seen as “joint employers” of an employee. Typically, for a franchisor to be considered a joint employer, they would need to have exercised some direct control over the day-to-day operations of the franchisee.

In the McDonald’s case, the plaintiffs sought to hold both the franchisor, McDonald’s Corp. and McDonald’s USA, and franchisee, Soweva Co., accountable for the alleged discrimination the plaintiffs suffered at work. To bring the McDonald’s corporate entity in, they argued that the company had the right to control operations at all of its restaurants through its franchise agreement and its business manuals. According to the plaintiffs, the McDonald’s corporate entity directs everything from how franchisees spend their advertising dollars to how they manage, train and supervise their employees. McDonald’s manuals also contain corporate policies and processes on discrimination and sexual harassment.

The parties to the McDonald’s lawsuit settled the case before it went to trial and the details of the settlement were not made public, so we won’t know if the plaintiffs’ argument for holding the McDonald’s franchisor entity liable would have been successful. However, recent developments in the area of labor law seem to indicate that the standard for holding franchisors liable as joint employers may be expanding in the favor of employees. In August 2015, the National Labor Relations Board issued a ruling in Browning-Ferris Industries of California, Inc. that created a new standard for the joint employer theory of liability in the context of unfair labor practices. The prior standard required an entity to take actual direct action over a worker to be considered a joint employer, while the new standard expands joint-employer status to entities that have indirect control or an unexercised right of control over a worker.

The ruling in Browning-Ferris did not directly apply to franchisors or to employment discrimination claims, but there is reason to believe that the ruling could be used in those contexts. The NLRB is currently in a fight with McDonald’s over whether it should be responsible for labor violations at independently owned franchises. Also, the Equal Employment Opportunity Commission, the federal agency charged with enforcing federal employment discrimination laws, sided with the NLRB’s position in Browning-Ferris noting that the NLRB’s standards can influence the judicial interpretation of joint employment in the discrimination context. The Browning-Ferris ruling is now being appealed and Congress is considering a new law that would overturn the ruling. Whether
franchisors like McDonald’s will be held increasingly responsible for employment law violations at the franchise level remains to be seen.

Who Should Be Responsible for Your Discrimination Claim?

If you’ve been the victim of discrimination and have questions about who should be responsible and what types of legal claims you can bring, we suggest you to contact an attorney immediately. An experienced employment discrimination attorney can advise you about the merits of your claim and the best way to pursue it. Eisenberg & Baum is ready and able to help you with your discrimination claim, and we encourage you to contact us for a free initial consultation.Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we likely can help no matter where you are.

The Sexual Harassment Case Against the University of Tennessee

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Peyton Manning’s name has been in the news recently for reasons other than his football team’s Super Bowl win. You may have heard about a recent lawsuit filed against the University of Tennessee for allegedly creating a campus culture that tolerated sexual violence, specifically violence committed by male athletes against female students. The lawsuit includes allegations that the school has a history of sexual harassment and assault dating back to the mid-1990s and references an incident from that time involving Manning, who was the quarterback of the Tennessee football team. The lawsuit comes at a time when sexual harassment and violence on college campuses has received heightened attention nationally, with President Obama launching the “It’s On Us” campaign in 2014 to end sexual assault on campuses.

In today’s blog post, we’ll talk about the allegations in the lawsuit against the University of Tennessee as well as the legal grounds that can be used to hold colleges accountable for systemic issues that contribute to and enable sexual harassment and assault on their campuses.

Title IX Claims Against The University of Tennessee

Sexual Harassment LawsuitA group of six female former students of the University of Tennessee filed the case against the university in federal court last month. Two more former students have since joined the lawsuit. The primary basis for their lawsuit is that the university violated Title IX of the Education Amendments of 1972 (“Title IX”) by creating a hostile environment that allowed for multiple sexual assaults to occur and were indifferent and unreasonable in responding to sexual assault claims by victims.

What is Title IX?

Title IX is a federal law that was enacted in 1972 to prohibit sex discrimination in education. The law applies to any educational program that receives federal funding, from elementary schools to colleges. The impact of the law has been far reaching. It has famously opened the doors to equal participation in sports for girls and women, allowed for women to have equal access to college and graduate school programs, and required schools to provide equal treatment of students who are pregnant or parenting. Title IX also prohibits sexual harassment against students as part of the overall prohibition on sex discrimination.

Sexual harassment of a student under Title IX is very similar to sexual harassment of an employee, which we’ve discussed in prior blog posts. Under Title IX, sexual harassment consists of unwelcome conduct of a sexual nature that creates a hostile environment by interfering with the victim’s ability to participate in school activities. The hostile environment concept is like the hostile work environment we’ve talked about in prior posts regarding workplace sexual harassment. In the context of Title IX, though, a school can be held liable for damages only if it has notice of the harassing activity and responds with deliberate indifference.

Student Allegations

The former University of Tennessee students claim that the University of Tennessee violated Title IX because it knew of and acted with deliberate indifference to acts of sexual harassment of its students. To set the background for the incidents of rape that the former students allegedly endured, they described a history of harassment at the school going back more than a decade.

Among the historical incidents cited was a 1996 incident involving Peyton Manning in which the former Tennessee quarterback allegedly placed his rectum and testicles on a trainer’s face while the trainer examined his foot. The incident was settled out of court, and Manning, for his part, denies the allegations. Yet, the incident has been raised 20 years later as just one of many examples of sexual assault and harassment that male athletes at the University of Tennessee have allegedly engaged in over that time.

Seven of the eight unnamed former students in the case claim to have been sexually assaulted or raped in separate incidents, primarily by male athletes at the school, and the eighth student claims to have been retaliated against because of her friendship with one of the alleged victims. The students allege that the university, including its chancellor, athletics director and head football coach, had actual notice of the long history of sexual harassment and violence on its campus and its indifference to those past incidents created an environment that enabled continued acts of harassment and violence, like those endured by the plaintiffs. The students also allege that the university had a disciplinary process that favored the athletes charged with rape and that the university actively stepped in to delay some proceedings, allowing the accused students in those cases to transfer or graduate before facing discipline.

The former students seek damages including reimbursement for tuition, pain and suffering, and other expenses the plaintiffs incurred as a result of the alleged sexual assaults. They also seek injunctive relief that would, among other things, require the university to institute a comprehensive sexual harassment policy and change its disciplinary process in sexual assault cases.

The University of Tennessee’s Response

The University of Tennessee has not yet filed a formal response with the court, but it has released a public statement regarding the allegations through its legal counsel. In the statement, the school defends its process for investigating and resolving sexual assault complaints and claims it “has devoted significant time and energy to provide a safe environment for our students, to educate and raise awareness about sexual assault, and to encourage students to come forward and report sexual assault.“ All 16 of the university’s head coaches for both men’s and women’s teams have also come forward to praise the environment at their school, without addressing the specifics of the Title IX lawsuit.

Incidents on Other Campuses

As the University of Tennessee noted in its public statement, it is one of many college campuses facing the challenge of sexual assault. A recent survey conducted by the Association of American Universities across 27 university campuses revealed 23% of female respondents had experienced some form of unwanted sexual contact while they’d been enrolled in school. The issue of sexual assault and sexual harassment is clearly not confined to Knoxville, Tennessee. Where schools have contributed to this problem by turning the other way or favoring a particular group of students, like athletes, in sexual harassment and assault claims, Title IX can be the tool to hold those schools accountable. Likewise, in states like New York, there may be state and local laws that can provide students with additional protection from sexual harassment and discrimination. New York State and New York City each hav
e a Human Rights Law that prohibits sex discrimination in places of “public accommodation,” which can include schools.

If you’ve been the victim of sexual harassment or assault as a student or an employee, we encourage you to report the incident to your school or employer and contact an attorney to discuss your case. Eisenberg & Baum’s attorneys have decades of experience handling sexual harassment cases in New York and can help you understand the merits of your claim 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 or settle your case.

Justice Scalia’s Legacy on Employment Discrimination Claims and What His Departure Means

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News of Justice Antonin Scalia’s death and the vacancy it has left on the Supreme Court has reverberated throughout the country over the last several weeks. That it happened during an election year has only heightened the attention given to the impact of his sudden absence and his potential replacement. Justice Scalia was known for using the doctrine of “originalism” to interpret the Constitution and for writing colorful, blunt opinions. His impact on areas of the law from the Voting Rights Act to the Second Amendment has been well-established over nearly three decades of service on the Supreme Court.

In this posting, we’ll talk about Justice Scalia’s legacy in the area of employment discrimination law and what the future may hold depending on his replacement. This isn’t intended to be a deep scholarly analysis for our fellow employment lawyers, but a general overview for anyone interested in Justice Scalia’s impact on employment discrimination cases and how his departure might affect similar cases in the future.

Justice Scalia’s Mixed Record on Employment Discrimination

Most people who follow the Supreme Court considered Justice Scalia to be one of the more conservative justices on the Court during his time. Scalia was appointed by Ronald Reagan and joined in many rulings lauded by conservatives over the last several decades. But his impact on employment discrimination law cannot be easily painted as conservative or pro-business. If you look at some of the employment discrimination cases decided by the Court over Justice Scalia’s tenure, he has been on both sides of opinions affecting employment discrimination law.

On one hand, Justice Scalia opposed expansion of sexual harassment liability and the ability of employees to raise large-scale class action discrimination lawsuits. In Burlington Industries, Inc. v. Ellerth, the majority of the Court found that an employer can be liable for a hostile work environment created by sexually harassing conduct of a supervisor, regardless of whether any adverse action was taken against the victim and whether the employer was directly responsible for the supervisor’s actions. Justice Scalia dissented from the majority opinion in Burlington, arguing that the majority created the rule for employer liability from nothing and that a supervisor’s harassing conduct should not be automatically attributed to their employer. Justice Scalia also wrote the majority opinion in Wal-Mart Stores v. Dukes, which denied a small group of female employees of the retailer the right to file a class action gender discrimination lawsuit on behalf of all female employees on the basis that the group lacked a common complaint. The burden fell, instead, on individual female employees to file their own lawsuits against one of the largest companies in the world in order to recover for any gender discrimination they experienced.

In other discrimination cases, however, Scalia sided with the employee, writing two opinions that supported broad views of anti-discrimination law. In 2011, Justice Scalia wrote an opinion in the case of Thompson v. North American Stainless that allowed family and friends of an alleged victim of discrimination to bring a retaliation lawsuit against their mutual employer. Most recently, Justice Scalia wrote the opinion in EEOC v. Abercrombie & Fitch Stores, a case in which the employer, Abercrombie, refused to hire a woman because she wore a head scarf. While the applicant claimed she’d been discriminated against based on her religion, Abercrombie claimed the head scarf violated its dress code and it had no reason to know that the applicant wore it for religious reasons. Scalia’s opinion supported the applicant by holding that she did not have to specifically request an accommodation to wear her head scarf in order to be protected from religious discrimination by a prospective employer.

Impact of Justice Scalia’s Absence on Employment Discrimination Cases

Justice Scalia’s absence from the Court has been the subject of a lot of media coverage. In the short term, how will it impact Supreme Court decisions? Will President Obama nominate a replacement, and if so, will the Republican-controlled Senate approve? What will the implications be if a Democrat or Republican appoints a replacement? We can only speak in general terms of the long-term impact of Justice Scalia’s absence from the Court. For the time being, while the Court is one justice down, its members are evenly split between four Republican appointees and four Democratic appointees. In those cases where the court is evenly divided and unable to come to a majority decision, the lower appellate court decision will stand. This could have implications on current employment law cases before the court, including Green v. Brennan, which concerns how long an employee has to raise a constructive discharge claim.

Republican DemocratMany Republican Senators have already indicated they would block any nominee sent to them by President Obama, so it’s highly likely the Court will stay at eight members until the next president takes office. If a Democrat were to win the election, the expectation is that they would appoint a more liberal judge to the Court. According to the New York Times, a liberal appointee would likely shift the Court’s overall ideology to a position it hasn’t been in for 50 years. In terms of employment discrimination cases, this could mean the new justice and the majority of the court would read the law more broadly and in favor of aggrieved employees. If, on the other hand, a Republican wins the presidential election, they’ll be more likely to appoint a conservative judge that would maintain the status quo. However, given Justice Scalia’s mixed opinions in past employment discrimination cases, it’s difficult to say that a new Republican-appointed justice would keep the status quo.

With a stalemate between the Senate and President looking likely, we’ll simply need to wait and see who will take the empty seat at the Court and how the future of not only employment discrimination cases, but a broad range of issues could be affected.

If you’ve been discriminated against at work, please contact Eisenberg & Baum. We have an experienced group of employment discrimination attorneys who are ready to help you. We offer free initial consultations for gender discrimination claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

 

The “Elephant in the Valley” – Gender Discrimination and Sexual Harassment in Silicon Valley

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As we discussed in last week’s blog post, the Pao v. Kleiner Perkins gender discrimination lawsuit has opened up a broader conversation about the issues women face in the tech industry. Inspired by this conversation, a group of women with experience working in the industry decided to put some real data to the anecdotal evidence of widespread sexism and discrimination. The group recently published the results of the survey online under the title “Elephant in the Valley,” and the results largely substantiate what was becoming clear in the aftermath of the Pao lawsuit: Ellen Pao’s case was illustrative of a much larger issue of gender discrimination in tech.

In this posting we’ll talk about the aftermath of the Pao case, the Elephant in the Valley survey, and what it means for women working in the tech industry and in the broader workforce. If you’ve been discriminated against at work based on your gender and would like to understand more about your legal rights and options, please contact Eisenberg & Baum. We have a group of experienced employment discrimination attorneys who can explain your rights as a victim of discrimination and help you decide the best way to address your particular claim.

The Pao Effect

Even before the jury reached a verdict in the Pao case, Ellen Pao’s story and lawsuit were having an effect outside of just the case itself. The case was very high profile, covered by major media outlets and the subject of broad discussion on social media. Soon after Pao filed her lawsuit, two other women filed suits alleging gender discrimination by major tech companies. Chia Hong filed a lawsuit against her former employer, Facebook, and Tina Huang filed a class action lawsuit against her former employer, Twitter. The fact that these cases came so soon after Pao only magnified the issue of harassment and unfair treatment of women in the male-dominated tech sector.

Though Pao ultimately lost her case, Fortune reported that, based on interviews with several Silicon Valley area plaintiffs attorneys, there was an appreciable “Pao effect” that continued even after the loss. Some lawyers saw a dramatic increase in the number of women coming forward with discrimination complaints, while others observed that gender discrimination clients seemed more emboldened and determined to shine a light on illegal practices at their job. Pao’s single case seems to have encouraged more women to come forward with their own discrimination complaints and has sparked a much broader conversation about gender discrimination in the tech industry .

Elephant in the Valley Survey and Findings

Inspired by this new discussion, a group of women with ties to the tech industry, including Trae Vassallo, a witness for Ellen Pao in her case against Kleiner Perkins, began a project called the Elephant in the Valley to gather hard data on what was becoming an apparent trend of gender discrimination across an entire business sector. Together, the team created a survey that they distributed to over 200 women working in a wide range of tech businesses. The women surveyed generally had at least 10 years of work experience, with many holding high positions of power at tech and venture capital companies. The vast majority of the women polled were from the San Francisco Bay and Silicon Valley area.

What the survey revealed was an astonishing amount of respondents who had experienced sexual harassment and other forms of gender bias and discrimination at work. Here are a few of the key results from the survey:

  • 60% of respondents reported having been subjected to unwanted sexual advances at work
  • 60% of women who reported sexual harassment to their employer were dissatisfied with the action taken
  • 39% of respondents who said they’d been sexually harassed did nothing because they were afraid it would have a negative impact on their career
  • 90% of respondents reported having witnessed some sort of sexist behavior at offsite events and conferences
  • 84% reported having been told they were too aggressive at work

On top of the survey data, the Elephant in the Valley also collected women’s stories and posted some of them on its website. Here are just a few of the stories provided:

  • “The first time I travelled with a new CEO he made an advance. I turned him down. After that, I was never asked to travel with him again. This impacted my ability to do my job.”
  • “When I am with a male colleague who reports to me the default is for people tend to defer to him assuming I work for him. As soon as they know that is not true they look to me. I have also had male colleagues say to me that once a woman is pregnant she is irrelevant.
  • “There is a VC networking group called “alpha” as in male, of which I am the only female member and was “invited” only after specifically asking. VCs have fly-ins, fly-fishing trips etc to which only guys are invited.”

What’s Next?

The point of the Elephant in the Valley was to continue to raise awareness and further the discussion of the issues of gender bias and discrimination in the tech industry.

This exercise isn’t merely to empower those women who may be the direct victims of the types of discrimination and inequity revealed by the survey, but to make an entire industry, especially men, aware of issues that are significantly impacting a significant portion of its workforce and leadership. What comes of this new focus on the treatment of women in the tech industry and beyond will depend on everyone involved. Tech employers can no longer turn a blind eye to the issues of gender bias, harassment and discrimination at work. The issue is too well known and its victims now too empowered for their concerns to be ignored. The victims themselves have had the door opened for them by plaintiffs like Ellen Pao and can take encouragement from the Elephant in the Valley project. If you have been subjected to sexual advances at work or left out of meetings or events because you’re a woman, you now know that you are not alone and you do not have to endure this kind of behavior. We encourage you to report incidents of harassment and discrimination to your employer and contact an attorney.

Eisenberg & Baum’s attorneys have decades of experience handling gender discrimination and sexual harassment cases. 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.

When Does Sexual Harassment at Work Become a Crime?

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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.

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.

Can I Get My Employer to Change Their Policies Through My Discrimination Claim?

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If you’re considering bringing an employment discrimination claim against your employer, you may have a number of goals in mind. First, you likely want the discrimination against you to stop, if it hasn’t already, and for your company to make you whole. Many victims of employment discrimination also want to ensure that their co-workers don’t have to go through the same or similar treatment in the future. An award of damages to an individual employee can only partially address these goals. So, how can an employee ensure that their employer not only pays for past discrimination against them but also makes changes to their policies and practices so that other employees don’t suffer from the discrimination in the future?

This type of employment policy change can be part of the overall remedy an employee seeks in their complaint and can occur at almost any stage of the complaint. Eisenberg & Baum has decades of experience helping victims of workplace discrimination recover the damages they’re due as well as make lasting changes at their workplace. We’ll talk in this post about when and how your employer can be persuaded and eventually ordered to make changes to their policies and practices.

Employer’s Internal Complaint Process

Change can come from within your company without ever having to go to court. The first step for any employee who is suffering discrimination at work is to let their employer know. Change typically will not come on its own. It often takes a victim standing up to their co-worker, manager or other harasser to get the process started. Many employers have adopted internal policies and procedures for handling discrimination complaints. Following this process puts your employer on notice that you have a complaint and they will need to investigate. When an employer’s internal complaint procedure is working well, it produces effective, independent investigations that can resolve the employee’s complaint through not only a remedy for the victim and discipline for the accused, but also internal changes to the extent that the employer’s policies or procedures played a part in creating the environment in which the discrimination occurred.

Administrative and Court Orders

Unfortunately, not all internal employer investigations resolve an employee’s complaint. The investigation may have resulted in a finding that no discrimination occurred or in a remedy that did not fully satisfy the employee. At that point, the employee will want to take their case to a third party, either an administrative agency that enforces discrimination laws or a court. In either case, the employee will be able to continue to seek policy changes among their remedies.

Administrative Complaints

One of the options you have as a victim of workplace discrimination is filing an administrative claim either with the federal Equal Employment Opportunity Commission (the EEOC) or, where applicable, with a state or local agency like the New York State Division of Human Rights or the New York City Commission on Human Rights. These agencies have the responsibility of enforcing various federal, state and local employment discrimination laws, and in the case of the New York State and City agencies, have the ability to order the employer to stop the discrimination and make necessary internal changes to ensure similar discrimination does not occur in the future.

While the EEOC itself can’t issue a binding order for damages or other remedies, it will often encourage the parties to settle the claim informally before bringing litigation. In a recent case handled by the EEOC and the New York Attorney General, female field workers for utility provider Con Edison brought sexual harassment and gender discrimination complaints against their employer for widespread harassment and discrimination by their male counterparts and supervisors. As part of their complaint, the employees alleged that Con Edison failed to effectively respond when the female employees complained internally and didn’t follow its own policies for discrimination investigations and retaliation. In September 2015, the EEOC and New York Attorney General announced a settlement had been reached with Con Ed in which the employer agreed to pay its female field workers $3.8 million in damages. The settlement went further, though, requiring Con Ed to provide training to its supervisors and make changes to its policies and procedures dealing with discrimination complaints.

Lawsuits

As a discrimination victim, you also have the option of taking your employer to court to address their discriminatory actions and recover damages. As part of the remedy in discrimination cases, courts generally have the ability to order injunctive relief to prevent the discrimination from occurring again. For example, a court could order an end to an employer’s use of certain age or gender requirements that contributed to the discrimination claim in the first place. A court could also require an employer to create or implement a new policy or procedure, such as providing sexual harassment training to all supervisors. In 2012, for example, after a jury found manufacturing company AA Foundaries, Inc. violated federal law by subjecting African-American employees to a racially hostile work environment, the court issued an order that both permanently prohibited AA Foundaries from engaging in further racial discrimination and required the company to develop policies and procedures for handling racial discrimination complaints in the future.

Even short of a judgment like that issued in the AA Foundaries case, your lawsuit can have an affect on your employer’s policies. A policy change could be included in the terms of a settlement with your employer, as was the case in a large racial discrimination lawsuit settlement involving Coca-Cola in 2000. As part of that settlement, Coca-Cola agreed to let an outside panel revise its personnel policy to improve the company’s record of hiring and paying minorities and women. In other cases, employers have taken it on themselves to make policy changes separate from any settlement or court order.

You Can Make a Change

If you’ve been discriminated against at work, you can make a difference for yourself and other employees by stepping forward with your complaint. Change can happen at any time, but it often takes someone to raise the issue before it can be addressed. If you’d like to discuss your discrimination claim and the types of remedies you can pursue, please contact Eisenberg & Baum. 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 Is “Constructive Discharge”?

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In past postings, we’ve noted that employees who are suffering discrimination or harassment at work should report the incident immediately to their human resources department or a supervisor to give the employer an opportunity to investigate and fix the issue. But what happens when your complaints go unanswered to the point that you simply no longer can work at your job? Do you give up your discrimination claim if you decide to leave your job because you can no longer work in such a horrible environment? If your situation at work is serious enough, you might be able to rely on a legal concept known as “constructive discharge” to show you did not voluntarily leave your job and support your underlying legal claim against your employer, like discrimination or breach of contract.

In this post, we will discuss constructive discharge, how it fits within the context of employment legal claims, and what is required to show a constructive discharge. If you’d like to understand more about the idea of constructive discharge and how it might apply in your own case, please contact us. We have a group of very experienced employment discrimination attorneys who are ready to help you understand your claim and advise you of your rights under the law. Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we can help no matter where you are.

When Is Constructive Discharge Used In a Legal Claim?

Constructive discharge, on its own, is not a legal claim. Simply because an employee feels they were forced into quitting because they could no longer bear coming to work does not mean the employee can recover lost wages, benefits or other damages. Instead, constructive discharge can be used to show you were effectively fired from a job when firing is an element of a larger legal claim.

Take, for example, a wrongful termination case based on discrimination. We’ve discussed the grounds for wrongful termination claims in the past, but as you might guess, one of the key elements to any wrongful termination claim is the fact that the employee was terminated. If, in our example, the employer never officially terminated the employee but instead allowed the discrimination to continue despite repeated reports by the employee, the employee might have grounds for claiming that their decision to quit the job was effectively a termination by their employer.

How Do I Prove Constructive Discharge?

The standard for demonstrating that you were constructively discharged can vary across jurisdictions, both state and federal. In New York, an employee alleging constructive discharge must demonstrate that their employer deliberately created working conditions that were so intolerable that a reasonable person would have felt compelled to resign from their job. You’ll note that there are a couple of elements to a constructive discharge claim, from the employer’s intent to the reasonable person standard.

Employer Intent

In some jurisdictions, like the federal Second Circuit, an employee must prove that their employer intentionally created the working environment that forced them to quit. This means the employer either had to take affirmative steps to create the environment, such as through a policy or employment decision, or must have been aware of the employee’s complaint but failed to address it. So, for example, it isn’t enough that you were harassed at work by your co-workers based on your age if your employer is never made aware of the harassment. If you feel you’re being discriminated against or harassed at work, it is important for you to follow your employer’s reporting procedure and let your employer know.

Objectively Intolerable Working Conditions

The other key element of constructive discharge is showing that your work conditions were so bad that a reasonable person in your shoes would have quit. As you can tell by the definition, something more than a mere nuisance is required here. A one-time, offhand comment by a co-worker likely isn’t going to be enough. Similarly, just because you may find your supervisor annoying, that isn’t grounds on its own to support a constructive discharge claim. It’s even possible that some instances of discrimination might not be considered egregious enough to meet the objectively intolerable requirement. The bar is very high here. The more egregious and sustained the behavior is, the more likely it will be considered intolerable to the point of forcing a reasonable person to quit.

Take our earlier example of an employee claiming wrongful termination based on discrimination. If that discrimination was sexual harassment, and it included claims that a supervisor continually made lewd comments and inappropriately touched the employee over a period of time, the employee would have a strong argument in favor of this point. Ultimately, however, the decision of what a reasonable person would do under the circumstances will be determined by the court or jury.

Get Legal Help

If you’re a victim of discrimination or harassment at work and you’ve either quit or feel your only option is to quit, contact Eisenberg & Baum. We’re ready and able to help you understand the law behind constructive discharge and employment discrimination claims, and we offer free initial consultations. For employment discrimination and retaliation cases, we bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

How Can I Prove I Was the Victim of Sexual Harassment If It’s My Word Against My Boss?

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As a lawyer, one of the easier cases to argue is one where there is indisputable evidence your client was wronged. This is the smoking gun situation, where the defendant is clearly at fault. In the world of sexual harassment, these smoking gun cases are rare. What is more common is a war of words—different versions of events told by the two sides to a sexual harassment case. As the victim of sexual harassment, this can be intimidating, especially if it is your word against your supervisor’s. Can your word hold up against your supervisor’s or your employer’s? Will your version of events be enough to win a sexual harassment case?

In this post, we’ll talk about the elements of sexual harassment, what types of evidence are used in a sexual harassment case, how conflicting testimony is resolved, and what you can do as a victim of sexual harassment to help support your own case. If you believe you’ve been sexually harassed at work and would like to understand more about your case, 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 Are the Elements of Sexual Harassment?

As we’ve discussed in prior blog posts, there are generally two types of sexual harassment cases: quid pro quo cases and hostile work environment cases. Quid pro quo sexual harassment cases occur when an employee is offered some employment benefit in return for the employee’s participation in some unwanted sexual conduct.

Hostile work environment claims, on the other hand, don’t involve this kind of “exchange” of sexual conduct for benefits but rather depend on the employee showing that they were subjected to unwanted sexual conduct that was severe enough to create an intimidating, hostile or offensive work environment. Unlike quid pro quo claims, hostile work environment claims typically require the employee show a pattern of harassment over time that ultimately interfered with the employee’s job.

What Types of Evidence Are Used in Sexual Harassment Cases?

Whether you have a quid pro quo claim or a hostile work environment claim, there are two general categories of evidence that you can use to support your case and counter the version of events provided by your supervisor or employer.

Direct Evidence of Sexual Harassment

Direct evidence is the most straightforward way of proving a sexual harassment claim. Direct evidence is evidence that goes to directly proving an element of your claim. For example, a statement by your supervisor that he will fire you if you do not consent to a sexual act would be direct evidence of quid pro quo harassment. Likewise, emails containing sexually explicit jokes sent to you by your supervisor could be direct evidence of a hostile work environment. Even if the statements supporting your claim were made verbally, they can be used to support your claim.

Circumstantial Evidence of Sexual Harassment

Sometimes, the harassment is not as blatant as the examples given above. Instead, an element of the harassment must be inferred by the circumstances surrounding the employee and the harasser. This type of evidence is known as circumstantial evidence, and while it can be more difficult to prove a sexual harassment claim or element based on circumstantial evidence, it can still be effective. Take the above example of the supervisor propositioning their employee, but instead assume the supervisor did not make an explicit threat to fire the employee if they did not consent. Nevertheless, the employee refused to participate in the sexual act and a day later, they were fired. The proximity of the firing to the supervisor’s proposition could be circumstantial evidence of a link between the proposition and the decision to fire the employee. Another example of circumstantial evidence that could help support the employee’s claim is evidence that other employees were treated similarly in the past by the same supervisor. The more circumstantial evidence there is to support the link between the proposition and the firing, the stronger the employee’s case will become.

How Will Different Versions of Events Be Resolved?

Sexual Harassment TestimonySo what happens when your version of events conflicts with your harasser’s version? First, you should know that, just because your supervisor tells a different story, that does not mean your testimony won’t be considered by a court. Your testimony, as the alleged victim of sexual harassment, is often a crucial part of your case. The purpose of the courts and administrative bodies like the Equal Employment Opportunity Commission in handling disputes is often to decide between differing versions of events. The more support you can give for your version through other evidence, the more likely you will prevail in the dispute.

What Can I Do To Support My Case?

Support for your case can come through a number of different sources, from statements by witnesses and other victims to emails and other documentation of the harassment. That kind of evidence is not always available, so it is helpful if you find yourself being sexually harassed, to document your experience as you go through it. We suggest keeping detailed, dated notes of conversations and interactions you’ve had with your harasser and management. Your employer will often have a reporting procedure for sexual harassment victims, which we also recommend you follow. This will provide another avenue for documenting your complaint. If there is a dispute between you and your harasser or employer about what actually happened, your documentation can be critical in supporting your case.

Finally, if you believe you have a sexual harassment claim, please contact us. We can 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.