Posts

How is Sexual Harassment Defined in New York?

/

Often, discrimination shows up when you least expect it. At first, you may not even realize that discrimination is what you are facing. Sometimes it takes someone pointing it out to you, or worse, the discrimination becomes so severe that there is no longer any doubt in your mind. Once you recognize there is a problem, you should take action.

Sexual Discrimination Defined

Federal laws define sexual discrimination fairly specifically. Employers may not discriminate against anyone on the basis of gender, among other protected characteristics, while making decisions about hiring, firing, compensating, or promoting employees or potential employees. These laws cover sexual harassment as well as pregnancy and childbirth.

Recognizing Discrimination

It may be difficult to believe that you are experiencing actions that are discriminatory. In the case of sexual discrimination, you may think that because no one is demanding sexual favors or making suggestive statements, you are not experiencing this type of discrimination. When you first start suspecting this type of problem, start paying attention to how exactly you are treated in relation to others around you. If in doubt, ask a close friend or coworker they feel about how others are treated.

Proving Workplace Discrimination

Once you are certain that what you are dealing with is discriminatory behavior in your workplace, begin documenting what goes on. Write down conversations that are discriminatory, word for word. Be sure to note the date, time and who was involved in the conversation. Save any written correspondence or memos that are discriminatory in nature.

File a Complaint

Anyone who feels that they have been discriminated against can file a complaint with the Equal Employment Opportunity Commission. Complainants must include their name and contact information, contact information for the employer and a short description of the alleged discrimination along with dates of these events. To meet with the timing requirements of the EEOC, claims must be filed within 180 days from the date of the incident. Prior to filing a claim, you may wish to contact an attorney who specializes in employment matters.

If it has taken you awhile to recognize that you are dealing with workplace discrimination, do not feel alone. Many people want to believe that those around them have the best intentions and do not first think of discrimination when they are denied a promotion or experience some other discriminatory act. Now that you know what to look for, you are better prepared to handle yourself if you encounter a problem.

How can a lawyer help me if I am being sexually discriminated against at work?

/

There are many different types of discrimination that can happen in the work place. If you think you are being sexually discriminated at work, it is best to seek the advice of an attorney experienced in the field of employment discrimination. For example, states have different laws against discrimination that may vary widely, so depending on which state you live in, there maybe different laws that apply to you. There are complex laws that may apply to different types of discrimination, and an attorney can help you understand the legal system and which laws would apply to your particular situation.

There are also Federal anti-discrimination laws, and perhaps before speaking to an attorney, it may be beneficial to review some of these laws to see if any apply to your particular case. For example, if you believe you are being sexually discriminated against at work, you may want to review a brief synopsis of Title VII of the Civil Rights Act of 1964: 42 U.S.C., which is a federal law that prohibits discrimination during your employment on the basis of race, color, national origin, sex, and religion.

Sometimes, discrimination cases involve a great deal of emotions, especially if it involves sexual discrimination. A lawyer can help you to sort through your emotions during this very difficult time, and separate your emotions from the boundaries, which are set up throughout the legal system. Lawyers are here to help protect your rights within the system, which at times can be very overwhelming to someone who may have never had contact with the legal system before.  A lawyer can help you to remain focused on the bigger picture and your future during a stressful time. Since a situation such as sexual harassment should not be taken lightly, it is very important that you seek out a lawyer who will work with you to understand your rights and needs as well as assist you in making sure that your rights are protected.

There are some steps that you can take before speaking to a lawyer, which would be beneficial to both you and your lawyer helping you with your case. You could review your company’s discrimination policy and try to research and review state and federal anti-discrimination laws. This will allow both you and your attorney to get the most out of your conversations.

An attorney well versed in employment discrimination matters can help you understand your rights and help determine if you have a claim – to speak to one of our attorneys, call us at 212-353-8700 today.

Can I Protect Myself from Employer Retaliation?

/

Some employers may decide to retaliate against their employees for opposing an act of discrimination in the workplace. Employer retaliation is not legal as long as you are a covered individual, opposing adverse action on the part of your employer and the manner in which you choose to oppose your employer is a protected activity. You can protect yourself from employer retaliation by becoming informed of the appropriate actions to take and knowing your rights. Employers are not allowed to fire, harass, demote, or “retaliate” against an employee for filing a charge of discrimination or opposing discrimination. The Equal Employment Opportunity Commission (EEOC) has laws that protect against retaliation. In addition, so does the Americans with Disabilities Act (ADA), which protects individuals from coercion, intimidation, threat, harassment, or interference in the exercise of their own rights or their encouragement of someone else’s exercise of rights granted by the ADA.

Being a Covered Individual

To be considered a covered individual you must be opposing or have opposed unlawful practices or have participated in the proceedings, which deal with employment discrimination based on race, color, sex, religion, national origin, age or disability. If you are closely associated with someone who is opposing employment discrimination you would be a covered individual. For example a close relative or friend. However, you would not be a covered individual if you are challenging your employer’s ethical or financial practices, this only applies to employment discrimination.

What is Adverse Action?

Adverse Action is an action that would try to prevent you from participating in an employment discrimination claim or proceeding. Some examples of adverse action would be termination, refusing to hire someone, or denying a promotion. You could also experience threats, negative reviews, negative references, or increased surveillance. You may also encounter unjustified civil or criminal claims to try and prevent you from pursuing your rights. Adverse actions are not petty or negative comments made, and if you have filed an EEOC claim against your employer it does not excuse you from performing your job, or from following workplace rules.

What is Protected Activity?

Protected Activity is when you inform your employer that you believe they are engaging in discriminatory behavior in the workplace. Your opposition should be based on a reasonable good faith belief that the behavior is violating anti-discrimination laws. Some examples of protected activity would be complaining to anyone about the alleged discrimination, filing a charge of discrimination, picketing in opposition to the discrimination, and refusing to obey an order you reasonably believe to be discriminatory. Non protected activity would be any activity that is unlawful or participating in activity that would interfere with job performance.

If you wish to learn more about what you can do to protect yourself against employer retaliation, speak to one of our experienced and professional attorneys to help you understand your rights.

What Kind of Damages are Awarded in Sexual Harassment Lawsuits?

/

If you are the victim of sexual harassment, you can file a lawsuit claim money damages from your employer.  There are five different kinds of compensation that a winning sexual harassment plaintiff can receive.  You should speak to an experienced lawyer to determine what types of compensation apply to your case.

Back Pay

Sexual-harassment-lawsuit-300x199The first kind of damages a winning sexual harassment plaintiff can receive is called “back pay.”  If you are fired because you won’t comply with your employer’s sexual demands, or if you quit because you can’t tolerate them, you may lose income if you can’t find another job. You have a duty to search actively for new work, but if you can’t find suitable work you can claim back pay from your employer, which means they must compensate you for all the earnings you have lost until the time of your trial, with interest.  You may also lose out on a raise if you don’t comply with your employer’s sexual demands, and this also could give rise to a back pay claim.

Front Pay

If by the time of your trial you still have not found replacement work despite diligent searching, you may be able to recover front pay. This means that the court will determine how long you are likely to be without work in the future, and compensate you for all of that lost income as well. Your employer may choose to offer you reinstatement rather than pay a large award of front pay, but if you believe the work environment is intolerable you may not be obligated to accept such an offer.

Pain and Suffering

Even if you don’t lose out on any income due to sexual harassment, you can still claim money damages if you experienced emotional or physical pain and suffering because of the mistreatment.  You should consult a medical doctor immediately if you believe you have experienced this type of trauma, and the doctor will testify at your trial to confirm your problems.  Then the court will determine an appropriate amount of money to fairly compensate for your past and future suffering.

Punitive Damages

If you can show that the employer’s actions were willful and intentional, federal law and some state and local laws allow you to make a claim for punitive damages. Such damages are not to compensate you but rather to punish your employer, so as to make them understand that the mistreatment must stop.  Such damages are calculated based on the income of your employer and can be very substantial.

Attorneys Fees

The last kind of compensation  you can obtain is attorneys fees. The law provides that if your attorney represents you successfully he or she can force your employer to pay all the fees for his or her work. It is up to the court to decide whether a winning attorney can receive a fee award, and if so how much. But if your attorney gets such an award, it might allow you to keep more of your own award yourself rather than sharing it with your attorney.

Can I be Fired for Complaining About Sexual Harassment?

/

The Civil Rights Act of 1964 was created to prevent discrimination in the workplace based on race, sex, color, national origin, or religion. However, that does not mean that discrimination is not a common issue, or that sexual harassment does not take place in the work place. Sexual harassment is a common form of employment discrimination for people of both genders, differing sexuality, and does not have to come from someone of the opposite gender. The Equal Employment Opportunity Commission (EEOC) states that it is unlawful to harass an applicant or employee of any sex in the work place. Sexual harassment can take the place in the form of sexual bribery referred to as quid pro quo, or as a “hostile work environment” which is accompanied by offensive comments or unwanted physical contact.

If you approach your employer about a sexual harassment problem in your own workplace, you should be aware that your employer is legally obligated to address the matter and is liable for any of your, lost income, pain and suffering some employees have experienced negative consequences after filing a complaint or assisting with someone else’s. Some of these negative consequences include being fired, demoted, suspended, poor evaluations or an unfavorable job placement. Such action is called “retaliation” and this treatment by an employer is illegal and you may be able to file a lawsuit.

Being fired for reporting sexual harassment is just as illegal as the vulgar act itself. Even if you cannot prove sexual harassment, it does not mean that you cannot prove retaliation. You may be able to receive damages to compensate you for any negative action your employer may have taken against you. In some cases it may be difficult to prove that any retaliation has been made against you or your fellow co-workers, which makes it important that you contact an experienced attorney, who can help you address your situation. Your employer cannot fire you because you complain about sexual harassment. If you are fired, consult an experienced attorney to learn about your legal rights as soon as possible as there are strict deadlines to file all such claims.

If you have experienced sexual harassment or employer retaliation, speak to the Sexual Harassment attorneys at Eisenberg & Baum – call 212-353-8700 and schedule a consultation today.

Can men be sexually harassed?

/

The typical sexual harassment case involves a man demanding sexual favors from a female subordinate.  But what happens if a male or female manager makes sexual demands of a male subordinate? Can the male victim bring a lawsuit? The answer is that it is possible, but it is complicated and you need to consult with an experienced lawyer to determine your legal rights.

The law is not the same everywhere

The first thing to understand is that the law regarding sexual harassment varies from state to state. Even federal law, which is supposed to be the same everywhere, varies by state because different courts interpret federal law in different ways. That is why it is essential to speak to a lawyer who understands these complexities.

Men can bring sexual harassment cases against women

There is no difference between a man demanding sexual favors from a female subordinate or colleague and a woman demanding them from a male subordinate or colleague.  Both types of sexual harassment are equally wrong and illegal, and the same rules apply to both.

Men can bring sexual harassment cases against other men

When a man demands sexual favors from another man, courts have adopted a more skeptical view of the claims. Courts recognize three main categories of lawsuits that can be brought by men against other men.

First, when the harasser is homosexual .

Second, when the harasser is motivated by general hostility to the presence of someone of the same gender in the workplace

And third, when there is direct comparative evidence about how the alleged harasser treated members of both sexes.

Men face stigma

Whether the harasser of a man is male or female, the male victim faces some stigma in a sexual harassment case. The difficulty in a man bringing a sexual harassment case is that men are stereotyped by society as being less vulnerable to sexual harassment and less likely to suffer from it. This means that a man faces an uphill battle to convince a court that he has been victimized, and then another uphill battle to convince the court that he has suffered substantial damages.  This means that men need particularly skilled and experienced attorneys to represent them in bringing such claims. But men should not be afraid to step forward and make their claims, since otherwise the problem of sexual harassment will never be resolved.

How do I file Sexual Harassment Charges?

/

There are four different ways to file charges of sexual harassment against someone who is forcing you to engage in sexual communication or contact at work.  You can file in internal complaint with your company, you can file an administrative complaint with a government agency, you can file a lawsuit in court and you can file a criminal complaint with the police.  Time deadlines apply in every case to the filing of sexual harassment charges, therefore it is vital to move forward immediately, as soon as the sexual harassment occurs.

Internal Complaints

The first step to take if you believe you are the victim of sexual harassment is to file charges with your company’s Equal Employment Opportunities Officer.  Your company handbook should have specific information about how to contact this office, and there should be notices posted prominently in your office that provide the information as well.  It is a very good idea to consult with an attorney before making such charges so that you can be sure your charges are properly prepared and filed.  Your company will then investigate your charges and may help you resolve them.  It is illegal to fire or discipline an employee because they make a sexual harassment complaint.  If you receive such mistreatment, you can file a lawsuit or make an administrative complaint.

Administrative Complaints

The U.S. Equal Employment Opportunities Commission is an administrative agency that receives and investigates complaints about sexual harassment.  Each state also has its own administrative agency that receives and investigates such charges.  If your EEO officer does not deal with your charge to your satisfaction, you can escalate your complaint to a government agency.  Again, it is very good idea to consult with an attorney before doing so, since any information you provide to the agency can be used against you in a court lawsuit. In addition, sometimes a filing with an agency constitutes an “election of remedies” that will prevent you from filing a suit in court. Other times you are required to make an agency filing before you can sue in court.

Lawsuits

If you are not satisfied with the remedies available to you from an administrative agency, you may want to file a lawsuit in court to claim money damages to compensate you for the sexual harassment you have experienced. In that case you need an attorney to assist you in filing the case.  This means you must work with your attorney to gather evidence and prove your  case to a jury. If you do, you can recover damages for lost wages, emotional pain and suffering, attorneys’ fees and, if the conduct was willful, in some cases you can recover punitive damages as well.

Police Charges

If your sexual harassment involves physical touching, it may well amount to criminal conduct that you can report to the police. The police cannot get financial compensation for you, but they can investigate your charges and if they find merit they can arrest and prosecute the wrongdoer.

Statutes of Limitations

It’s extremely important to be aware that strict deadlines apply to the filing of sexual harassment charges. If you wait too long, you will lose your rights.  Therefore, you should contact an attorney and receive a legal consultation about time deadlines as soon as the sexual harassment happens.

Does Sexual Harassment have to be at Work?

/

Many people are familiar with the basic concepts of sexual harassment as it occurs in the workplace. What you may not know, however, is that you can still be a victim of work-related sexual harassment even if you’re not at the office or your usual work location.

Harassment: Onsite, Outside the Workplace and Even After Hours

Sexual harassment itself has a variety of definitions, which have evolved through various court rulings over time, and the same applies for the setting. Incidents at work-related activities outside the office, such as business conferences and training sessions, count as sexual harassment.

Less common examples of sexual harassment outside of work that the employer is liable for require an understanding of the work environment boundaries as set by federal law. The boundaries are not defined by physical location but whether what you are doing is part of your role as an employee.

For instance, if you’re harassed by a colleague at a training meeting taking place at someone’s personal residence, the incident is considered sexual harassment away from work. But if you’re harassed by another employee at a private party or while on a personal vacation, your employer may not bear any legal responsibility.

If you’re traveling to an event as part of your job, such as a conference, your employer is responsible for any sexual harassment you experience during the travel time as well as at the location you’re going to. The same applies to traveling in general when you’re doing so as part of your position, such as going to multiple branch offices or store locations.

Protect Your Rights and Get Help

Essentially, if your harasser is a fellow employee, and especially if your harasser is a supervisor, manager, executive or owner, your employer may be legally obligated to address the problem and may be liable for any pain and suffering you experience if they fail to do so. The same may apply to a third party independent contractor whose services your employer is using, as illustrated in the decision of the court in the 2012 federal court case from Puerto Rico calledRosa-Santos v. Puerto Rico Children’s Hospital, Inc.

If your employer fails to protect you and your rights, you may be entitled to damages in court under federal law. An experienced attorney can help you address the situation and get what you deserve. It is important to keep a detailed record of the dates, times and details of any sexual harassment you experience related to your work. This information will help your case and your attorney.

Can Sexual Harassment be Verbal?

/

new-york-sexual-harassment-lawyersSome people think that your employer has to touch you in order for you to be a victim  of sexual harassment, but this is not correct. You have the legal right to be free from verbal sexual communication as well as physical contact, and if you receive verbal sexual harassment you may be able to file a lawsuit and claim money damages to compensate you for your suffering.  There are three main kinds of verbal sexual harassment:  explicit language, threats and promises.

Explicit Language

You have the right to avoid sexual communication at your workplace unless it is part of your employer’s work (for example, employees of Playboy magazine may need to discuss sex sometimes).  You always have the right to be free from personal sexual communication.  If someone at work is insisting on talking to you about sex, you should tell them to stop.  If they won’t, you should consult with an attorney to learn about your legal rights and the ways that you can fight back against this unwanted communication.

Threats

Sometimes an employer does not use explicit language but simply threatens an employee that she must engage in sexual activity in order to keep her job. Such threats are illegal.  Your employer can’t demand sex in exchange for employment, and if he does you may be able to file a lawsuit against him claiming money damages to compensate you for your mistreatment.

Promises

Not all sexual harassment is negative. Your employer may also offer you positive changes in the terms and conditions of your employment if you engage in sexual acts or communication.  This is known in the law as “quid pro quo” sexual harassment. It is illegal. Your employer can’t offer you better working conditions or higher pay in exchange for sexual communication or contact. If he does, you may be able to file a lawsuit against him and seek money damages to compensate you for this mistreatment.

5 Textbook Scenarios of Sexual Harassment

/

Sexual harassment can take on many different forms. Below is a list of five common types of sexual harassment.

1. Verbal comment or gesture

Verbal comments or gestures from an employer to an employee are prohibited where the unwelcome or unwanted comments or gestures are of a sexual nature. This may include commentary about an individual’s body or sexuality, suggestive or obscene gestures, or the display of graphic and sexually suggestive objects.

2. Sexual jokes or advances

Unwanted sexual jokes, advances and flirtation are not permitted in the workplace. This includes sexual innuendo, graphic comments and repeated jokes made to members of one gender. Employees have the right to a workplace free from these types of comments.

3. Coerced sexual acts

An employee may not be forced to engage in any type of sexual relation with another employee, manager or supervisor. It is simply unacceptable for an employer to require an employee to engage in sexual conduct.

4. Quid pro quo

The literal translation of this means “something for something” and this typically takes the form of an employer making a non-work related request of an employee in return for something work related. For example, a manager is prohibited from conditioning a raise for an employee on the employee’s willingness to meet the manager for dinner. This may also include express or implied demands for sexual favors in exchange for continued employment or a promotion.

5. Inappropriate touching

An employee may not be touched, groped or assaulted by another employee, a manager or a supervisor. It is not appropriate for an employee to brush up against another employee and create unnecessary and unwanted contact.

The type of behavior described above is inappropriate and unacceptable in the workplace. If you or a loved one have experience sexual harassment at work, you should contact an attorney immediately to determine your rights.