Sexual Harassment Likely to Increase as Employees Return to the Office

In 2020, as the Coronavirus pandemic forced millions of employees to work remotely, the number of charges filed with Equal Employment Opportunity Commission related to sexual harassment dropped by nearly 1,000.[1]  This summer, many employees are beginning to return to the office, meaning they will be spending hours interacting with their coworkers face-to-face, including at post-work drinks and work events.  Unfortunately, increased face-to-face interaction will likely lead to increased sexual harassment.  This blog post explains the basics of claims under the federal, New York State, and New York City employment laws related to sexual harassment in the workplace and retaliation for complaining about sexual harassment. 

Sexual Harassment is Actionable as Hostile Work Environment

An employee who has been sexually harassed by a co-worker or supervisor may have legal claims under the federal, state, and city employment laws pursuant to the hostile work environment theory.  In order to make out a hostile work environment claim under federal and New York State law, the sexual harassment endured must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must also find the work environment to be hostile or abusive.  To determine whether a work environment is hostile or abusive, courts consider (1) the frequency of the discriminatory conduct, (2) the severity of the of the conduct, (3) whether the conduct was physically threatening or humiliating, (4) whether the conduct interferes with an employee’s work performance, and (5) if the employee suffered psychological harm.  

Typically, single or isolated incidents do not rise to the level of a hostile work environment unless they are sufficiently severe.  For example, while a single lewd or sexual joke or comment likely will not constitute a hostile work environment, a single instance of non-consensual touching of an employee’s breasts, buttocks, or vagina almost certainly will.  However, less severe, repeated conduct (i.e. massaging an employee’s shoulders, making lewd and inappropriate comments, asking about an employee’s sex life, making sexual gestures, making offensive comments about an employee’s looks, clothing, or body) over a period of time may also constitute a hostile work environment.  

The standard for maintaining a hostile work environment claim under the New York City Human Rights (“NYCHRL”) law is lower than the standard under federal and state law.  Under the NYCHRL, the conduct endured does not have to meet the severe or pervasiveness.  Instead, an employee only needs to prove that she has been treated less well than other employees because of her gender.  However, petty, slight, or trivial inconveniences are not actionable.  

Retaliation for Complaining About Sexual Harassment

When an employee complains about sexual harassment to a supervisor, human resources, or a person of authority at her company, then the employee has engaged in “protected activity” and  may have legal claims under federal and state laws for retaliation if her employer fires her, demotes her, or takes some other adverse action against her for complaining.  Under the NYCHRL, an employee does not need to prove an adverse action and only needs to show that her employer engaged in some conduct that would be reasonably likely to deter a person from engaging in protected activity.  Importantly, an employee can have a retaliation claim even if she does not have underlying hostile work environment claim.  Simply put, an employee that complains of sexual harassment and suffers an adverse action (or conduct reasonably likely to deter a person from engaging in protected activity) may have a retaliation claim regardless of whether the harassment to which she was subjected was sufficiently severe or pervasive to be actionable as a hostile work environment under the law. 

If you have been sexually harassed at work, or your employer has retaliated against you for complaining of sexual harassment, we would be happy to speak with you about your rights and answer any questions you may have.
 

[1] https://www.eeoc.gov/statistics/charges-alleging-sex-based-harassment-charges-filed-eeoc-fy-2010-fy-2020