Tuckner, Sipser, Weinstock & Sipser, LLP is a labor and employment law firm located in New York City and the Mid-Hudson Valley with a practice concentrating on advancing women’s rights in the workplace through representation in claims involving gender discrimination (such as unequal pay), sexual harassment, pregnancy discrimination, and all intersectional[1] disparate treatment claims involving ‘sex plus’, race, color, age, gender identity, and/or disability.
As a New York sexual harassment law firm, we frequently receive calls from asking “What is sexual harassment?” and “What should I do if I’m being sexually harassed at work?” The following explains what constitutes sexual harassment in New York, what your rights are if you’ve been sexually harassed, and what you should do if you are being sexually harassed.
If you’ve been subjected to sexual harassment, you don’t have to take it. The law is on your side. Please consider calling our firm for a free consultation with an experienced New York sexual harassment lawyer to learn about your options.
As New York sexual harassment attorneys, we even the playing field against corporations and managers that act as though they are above the law. Let us help you.
Two Frameworks of Sexual Harassment in New York
In New York, sexual harassment is a form of sex or gender-based discrimination.[2] Historically, there were two primary frameworks for understanding sexual harassment under both federal and some state laws, including the discrimination laws in New York.
- Quid pro quo harassment: This occurs when someone in a position of power demands sexual favors in exchange for job benefits (such as a promotion, raise, or job assignment) or to avoid negative consequences (such as being terminated).
- Hostile work environment harassment: This occurs when unwelcome sexual acts or statements create an offensive, abusive, or severely hostile work environment.
The harasser can be a supervisor, a co-worker or someone who is not an employee, such as a client or customer. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment, and/or when it results in an adverse employment action, such as failure to hire or promote, or that leads to employee termination.
What types of behavior may constitute sexual harassment?
Sexual harassment may be verbal, visual and/or physical, including:
- Sexually offensive and unwelcome remarks or jokes
- Unwanted touching or groping, which is also criminal sexual abuse
- Coerced sex acts
- Requests for sexual favors or that are of a sexually suggestive nature (e.g., asking employee to dig coins out of a supervisor’s pants pocket)
- Displaying pornographic images
- Comments (either complimentary or derogatory) about a person’s physical appearance or gender identity or sexual orientation or affectional preferences
- Sexual gestures (e.g., pantomiming sex acts)
What is the law on sexual harassment in the workplace?
Sexual harassment in the workplace is prohibited
Sexual harassment is prohibited by:
- Title VII of the federal Civil Rights Act
- The New York State Human Rights Law
- The New York City Administrative Code)
Federal law, as well as the New York State and City Human Rights Laws also protects against harassment or discrimination based on sexual orientation, gender identity or transgender status. All forms of sex-based discriminatory treatment are now prohibited by law.
Is sexual harassment a crime?
In some instances, yes.
If the harassment involves physical touching, coerced physical confinement, or non-consensual sexual acts, the conduct may constitute molestation, which is a sex crime.
What should I do if I experience sexual harassment at work?
Keep a record
Try to write down as much information as you can about what has happened. Here is a list of things that might be helpful to record:
- What was said or done?
- When did this incident or these incidents happen?
- Who harassed you?
- What role do they have in your employment?
- How does their level of seniority compare with yours? (e.g., supervisor, co-worker)
- Who, if anyone, witnessed this incident or these incidents?
- Who, if anyone, did you tell what happened?
- How has this incident or these incidents affected your ability to perform your job?
- What, if any, physical symptoms and/or emotional distress have you suffered as a result of this incident or these incidents?
- Did you report the incident to any management or HR personnel?[3]
- What, if anything, has been done about your internal incident report?
Obtain a copy of your employer’s sexual harassment prevention policy
Employers in New York are required to have a policy on sexual harassment and to ensure that all employees are made aware of this policy. Every employee must be provided with a written copy of the employer’s sexual harassment prevention policy.
Follow employer procedures
If you believe that you have been subjected to sexual harassment in the workplace, you should contact the person or office who may have been designated by your employer to receive such complaints, and make sure to put all complaints in writing so that you’ll have proof that you notified your employer of your workplace civil rights violations.
Consult an Experienced NYC sexual harassment attorney
It is important to speak with an attorney before choosing to file a sexual harassment complaint, since the correct forum for filing complaints can vary widely based on the facts of the claim, the location and size of the employer, the nature of the employee’s harms, losses and expectations, and the nature of the employer’s business.
If you need assistance with considering and/or filing a sexual harassment complaint, please contact us at (212) 766-9100 or (845) 201-0200, or at www.womensrightsny.com to schedule a no-charge consultation.
What should I NOT do if I experience sexual harassment at work?
Quit.
If you quit, you may lose your leverage against your employer for the wrongful conduct that has occurred. As a New York sexual harassment law firm, we invite you to contact us to learn about how we can help.
Post about what happened on social media
Your social media posts can and often will be obtained and may be used against you by your employer later to discredit your account of what happened. Even if you are posting on a private social media account, any posts may still be used to your disadvantage in an administrative proceeding or in state or federal court, which may undermine your claims.
Don’t Delay
There are time limits for filing complaints of sexual harassment at work. For example, for those working in New York, the federal EEOC filing deadline is 300 days from the “last discriminatory act,” so don’t delay in seeking advice and counsel within these time limits.
Destroy evidence of the sexual harassment
It is important to keep emails, text messages, notes, or any other physical evidence of sexual harassment. New York is a “one-party consent” state, which means that only one participant’s consent is required for you to lawfully record others. It is not illegal in New York to record another person, if you are party to the conversation that you’re recording.
Worry about whether you are too sensitive
When someone is accused of sexual harassment, it is not uncommon for an employer to claim that a person was just too sensitive, and that the harasser was only joking. However, sexual harassment law looks to how a reasonable person would react to the behavior or conduct, and the impact of that – it is less important what the person accused intended.
How do I file a complaint for sexual harassment in the workplace?
All employees
Private Sector Employees in New York
Filing a complaint with the Equal Employment Opportunity (EEOC)
A private sector employee, employed by a company with 15 or more employees may file a complaint with the Equal Employment Opportunity Commission (EEOC) within 300 days of the last discriminatory act, which is typically the date of the employee’s termination.
Filing a charge of discrimination with the EEOC is a condition precedent (i.e., a prerequisite) to filing a lawsuit in federal court. Once the EEOC concludes its investigation into the discriminatory charge, it will provide a “Notice of Right to Sue.” An employee may only file a lawsuit in federal court within 90 days of the employee’s receipt of the NORTS from the EEOC, but keep in mind that the EEOC finds for the employer in well over 90% of the discrimination charges filed with the agency, so it’s best to hire an employment lawyer in your city or state to attempt to resolve your case before spending years in a difficult lawsuit.
Filing a complaint with the State Division of Human Rights (NYSDHR)
A private sector employee, employed by a company of any size in New York may file a complaint with the State Division of Human Rights (SDHR). A complaint must be filed within 1 year from the last discriminatory act, usually the employee’s firing.
The SDHR has offices throughout the state, in the cities of Albany, Binghamton, Brooklyn, Buffalo, Manhattan, Long Island, Syracuse, Rochester, and Peekskill.
Contact the New York State Division of Human Rights (NYSDHR)
Address: New York State Division of Human Rights, One Fordham Plaza, Bronx New York 10458
Telephone: (718) 741-8400
Website: www.dhr.ny.gov
Filing a complaint with the New York City Commission on Human Rights (NYCCHR)
A private sector employee, employed by a company with four or more employees in New York City may file a complaint with the New York City Commission on Human Rights. A complaint must be filed within 1 year from the last discriminatory act, usually defined as the employee’s firing date.
The NYCCHR is charged with enforcing the New York City Human Rights Law, which prohibits sexual harassment in the workplace.
Contact the New York City Commission on Human Rights (NYCCHR)
Address: Law Enforcement Bureau of the NYC Commission on Human Rights, 22 Reade St, New York, NY 10007
Telephone: 311 or (212) 306-7450
Website: www.nyc.gov/html/cchr/html/home/home.shtml
What happens if I report sexual harassment but then face workplace retaliation where my treatment gets even worse or I get fired?
Protections against retaliation
Illegal retaliation occurs when the “terms or conditions” of one’s work are unfavorably changed as a result of one’s reporting sexual harassment or cooperating with the investigation of a sexual harassment complaint or lawsuit. Illegal retaliation also includes termination as the result of making a sexual harassment complaint.
Retaliation for making a complaint about sexual harassment is prohibited by law. If this occurs, you may have a separate claim of illegal retaliation in addition to any claim of sexual harassment.
If you believe you have suffered illegal retaliation, you should consult with an attorney and inquire with the agencies listed above as to the specific time limits and procedures that apply.
Can I start a lawsuit?
It is important to determine the correct forum and to file a claim well in advance of any filing deadlines. A Title VII federal claim may only be brought in court after a “Charge” is filed with the EEOC. Under the New York State and New York City Human Rights Laws, one must decide to either file with either agency or file directly in State Supreme Court.
If you need assistance with considering and/or filing a sexual harassment complaint against your current or former employer, please contact us at (212) 766-9100 or (845) 201-0200, or email us as info@womensrightsny.com to schedule a no-charge consultation. Once we learn about what has occurred, we can provide you with options about how we can help.
Our mission is to assist you to hold your current or former employer accountable for sex-based discriminatory treatment to ensure it doesn’t happen again, and to help you obtain compensation for the harms and the losses that you have sustained through illegal conduct.
[1]Intersectional discrimination happens when different axes of identity (e.g., race, gender, sexual orientation, disability, etc.) intersect in such a way that creates a unique form of workplace disadvantage or marginalization.
[2] It’s denominated as “sex” discrimination under New York State Law and “gender” under New York City Law.
[3] It is critically important to document all sexual harassment complaints in writing to your company’s Human Resource Department or to any person in upper management in your company as you will need a “paper trail.”