As brought to light during the course of the #MeToo movement, it is illegal to harass an employee or even a job applicant in New York State due to that person’s sex or gender.  However, some of the recent cases of sexual harassment in the press raise more questions than they answer as to what kind and manner of conduct is illegal.  In other words, sexual harassment at times is difficult to define and quantify and does not always need to be purely of a sexual nature. So how do we sort it all out?  To begin with, harassment does not need to include physical or sexual actions. It is considered prohibited sexual harassment to make offensive remarks about women, but these remarks must be severe or pervasive to be actionable, meaning that a single comment is usually not sufficient. Romantic overtures, rather than purely sexual ones, such as repeatedly asking a coworker on a date, may also be considered sexual harassment. The actions that are considered to be harassment may be directed toward a man or woman and may be committed by men or women. The victim and the harasser may be of the same sex or gender.

Sexual harassment claims fall into two distinct categories: 1) quid pro quo, and 2) hostile work environment.

Quid Pro Quo Sexual Harassment

A claim for quid pro quo sexual harassment may arise when your employer offers, either expressly or by implication, to trade job benefits such as a promotion, pay raise or other job benefit, in return for sexual favors.  Typically, quid pro quo sexual harassment is committed by a direct supervisor or manager that is in a position of sufficient power to grant the promised benefit.  Given the direct and often immediate impact on the employee, quid pro quo sexual harassment is often extreme and has lasting emotional and psychological effects on the targeted victim.

Here are a few examples of conduct that may be considered quid pro quo sexual harassment:

• Text messages from the hiring contact at a potential job offering the position in return for sexual favors;
• E-mails from a supervisor promising a promotion if the employee will go out with him for drinks and do what it takes to earn it;
• Verbal communications with the boss where an employee’s submission to sexual favors is made a term or condition of continued employment;
• Another employee who submits to sexual favors is given the promotion that an employee has earned or deserves;
• Late night texts or e-mails of a sexual nature demanding that an employee communicate in kind and implying that their job depends on it.

Hostile Work Environment Sexual Harassment

A claim for hostile work environment sexual harassment arises when the actions that constitute the underlying harassment are “severe”, “frequent” or “pervasive”.  This type of harassment may be committed by co-workers as well as supervisors, managers, and even clients or customers. This type of harassment may include sexual or romantic advances, sexually discriminatory remarks, derogatory statements, words, pranks, jokes, signs, physical violence, intimidation, or any sort of conduct or action of a sexual nature taken due to the victim’s sex.  Actions or conduct that constitute hostile work environment sexual harassment must cause the person hearing or seeing them discomfort, humiliation, or a significant loss of productivity at work.

Here are a few examples of conduct that may be considered hostile work environment sexual harassment:

• Inappropriate touching, massaging or fondling without the employee’s consent;
• Suggestive, offensive or sexually explicit language;
• Comments about an employee’s body parts;
• Exposing an employee to sexually suggestive and offensive images;
• Sending or forwarding emails, texts or other messages with sexual overtones;
• Co-workers making repeated sexual jokes in the employee’s presence.

Generally, the New York State Human Rights Law applies to employers with four or more employees, while Title VII applies to employers with 15 or more employees. However, the Human Rights Law applies to all employers, regardless of how many people they employ, as of 2015. Even domestic workers like a nanny or maid are protected from sexual harassment.  Those individuals employed in New York City (Brooklyn, Bronx, Manhattan, Queens or Staten Island) are more advantageous. New York City Human Rights Law offers more extensive protection than state and federal laws. Incidents that would not be considered severe according to federal or state criteria may be valid within the City of New York.

An employer faces strict liability if the employee has been harassed by an owner or high-level manager. Employers may only be held strictly liable for harassment by lower-level managers and supervisors if they have enough control over an employee’s working conditions. This means that an employee may hold an employer responsible for the harassment, even if the owner did not know that it was happening. However, an employee should report the harassment to the employer and take advantage of any grievance system that the employer has put in place before taking other formal steps.

We at the Van De Water Law Firm, P.C. stand ready to protect your rights and are available for a free consultation at 631-923-1314 or email us  if you feel that you have been a victim of sexual harassment.  Don’t hesitate to protect your rights.

Author: The Van De Water Law Firm

On Thursday, February 14, 2019, New York Governor Andrew Cuomo signed into law one of the most important pieces of Civil Rights legislation in years, the Child Victims Act, ensuring that child abusers are held accountable in a civil court of law.  Finally, those survivors who have endured unimaginable pain and abuse have a path not only to justice, but perhaps also healing and closure.  As Governor Cuomo himself succinctly stated on that date: “This bill brings justice to people who were abused, and rights the wrongs that went unacknowledged and unpunished for too long.  By signing this bill, we are saying nobody is above the law, that the cloak of authority is not impenetrable, and that if you violate the law, we will find out and you will be punished and justice will be done”.  In short, the Child Victims Act provides long-awaited relief to child victims of sexual abuse by amending New York State’s antiquated laws to ensure that perpetrators of sexual abuse offenses on children are held accountable for their actions, regardless of when the crime occurred.   Under the former law, victims of sexual abuse as children had to bring a lawsuit within three year’s of the victim’s 18^th birthday, an injustice that led to many victims finding the strength to come forward only learning too late that they were time barred from bringing a civil action against the heinous perpetrators of these crimes.  No more says the New York legislature!  A one-time window has opened for victims to file civil lawsuits for the immense emotional fallout associated with cases involving the sexual abuse of a child.

Here is what you need to know NOW about this important legislation and how it affects a victim’s exercise of their rights in a court of law. The Child Victims Act:

• Allows victims of these crimes to commence a civil lawsuit any time before they reach 55 years of age;
• Provides victims whose claims have been time-barred with a new opportunity for their day in Court by opening a one-time one-year window for them to finally commence a lawsuit;
• Increases the amount of time during which perpetrators of these crimes may be held criminally accountable by extending New York’s statue of limitations to allow for criminal charges to be filed until a victim turns 28;
• Eliminates the need to file a Notice of Claim for sexual offenses committed against a minor;
• Requires judicial training with respect to crimes involving the sexual abuse of minors; and
• Authorizes the Office of Court Administration to promulgate rules and regulations for the timely adjudication of these revived actions in a Court of Law.

The one-time one-year look back period opens during the summer of 2019, so it is very important for victims of child abuse to consult with a knowledgeable attorney as soon as possible to discuss their rights and develop a plan for your vigorous representation.  Stay tuned for more from the Courts on the promised procedural rules and regulations, which will be integral in successfully litigating these cases and will likely be tailored toward early resolution and settlement.

Let’s face it, the legalization of the recreational use of marijuana in New York State appears a foregone conclusion.  Both the state Legislature and Gov. Andrew Cuomo are negotiating whether to include the legalization of recreational marijuana in the state budget for the fiscal year that starts April 1^st. However, keep in mind that license to fire up that joint would not go into effect, at the earliest, until the following year in April of 2020, when New York would officially join the 10 other states that have already legalized recreational marijuana use.

Governor Andres Cuomo’s proposal for the legalization of recreational marijuana use essentially condenses into the following agenda:

• Ban marijuana sales to anyone under the age of 21
• Establish separate licensing programs for marijuana growers, distributors and retailers, with a corresponding ban on growers also opening retail locations
• Create a new state office, The Office of Cannabis Management, to regulate the drug and create a program to review and seal past marijuana convictions
• Allow counties and large cities in New York to ban marijuana sales within their boundaries
• Impose a 20 percent state tax and 2 percent local tax on the sale of marijuana from wholesalers and retailers, plus a per-gram tax to be imposed solely on growers
• Provide preferences and incentives to minorities and women who intend to establish retail sales locations.

Nevertheless, the debate rages on about how far reaching the effects will be within the school environment, impaired driving and ultimately, the workplace.

Along that vein, it is important for all New Yorkers to be aware of the risks of showing up to work under the influence of marijuana.  As you know, if you show up to work under the influence of alcohol, and your employer has a substance abuse policy in their handbook, then you risk a disciplinary write-up at best, and termination at worst.  The same rules apply to employee’s use of recreational marijuana.  If you show up to work high, or light up outside your employer’s premises, employees run the same risks as with alcohol use.  Certainly, it is a fine line to tread as there are no uniformly established THC levels that your employer can test to determine an employee’s level of impairment.  Employers would therefore be given free license to make subjective judgments as to an employee’s level of impairment based upon smell, speech patterns, eye movement and dilation, delayed reactions, emotional state, short-term memory problems, among other physical symptomology.

It is a slippery slope at best, but an employer is within their rights to terminate employees with substance abuse violations.  This is especially so in occupations involving physical labor and the use of a motor vehicle including drivers, delivery companies, waiters, warehouse workers, trades and any employees in the service industry.

The Van De Water Law Firm stands ready to serve you with respect to any employment issue, and our initial consultation is always free.