Who Is Protected From Unlawful Harassment?
New York State law protects both men and women from harassment in the workplace, and bars both heterosexual and homosexual harassment at work. Sexual harassment may include the harassment of women by men, men by women, men by men, and women by women.
Two Types of Workplace Harassment
There are two types of workplace harassment:
- Quid pro quo harassment.
- Hostile work environment harassment.
Hostile Work Environment Harassment
Hostile work environment harassment involves conduct so objectively offensive as to alter the conditions of the victim’s environment, which is subjectively perceived as hostile or intimidating.
Hostile work environment harassment unreasonably interferes with the victim’s job performance.
Hostile work environment harassment occurs because of the victim’s gender (or any other protected characteristic).
Unlawful hostile work environment harassment is not limited to sexual harassment. In New York City, harassment based on the following characteristics is also prohibited:
actual or perceived age, race, creed, color, national origin, gender, disability, marital status, domestic partnership status, military status, predisposing genetic characteristics, sexual orientation, domestic violence victim status, sex offenses victim status, stalking victim status, or alienage or citizenship status of any person.
An employee need not suffer an adverse employment consequence, such as a demotion, denial of pay raise or other benefits, change to less favorable job duties, or termination, in order to be the victim of hostile work environment harassment. The occurrence of the harassing conduct, by itself, is enough to form the basis for a claim of hostile work environment harassment.
Severe Or Pervasive Conduct
In New York City only, conduct need not be severe or pervasive to constitute hostile work environment harassment, but the conduct’s severity and pervasiveness bear upon the scope of permissible damages.
In New York City only, the test for hostile work environment sexual harassment is whether the employee was unequally treated based upon gender.
In other words, the goal of the New York City workplace harassment law is zero employer tolerance for words or actions by which a person is treated less well than others in the employment environment because of membership in a protected class.
Examples Of Sexual Harassment
Sexual harassment includes, but is not limited to:
- Attempted or actual sexual assault;
- Any nonconsensual touching or physical contact of a sexual nature;
- Direct or indirect bribes for, or threats of, unwanted sexual activity;
- Pressure for sexual activities accompanied by implied promises of special treatment or threats concerning an individual’s employment status;
- Repeatedly asking a person out for dates or to have sex;
- Ogling or leering in an inappropriate manner;
- Gender-based or sexually charged name-calling;
- Falsely accusing a person of advancing at the company by giving sexual favors;
- Rating a person’s sexuality;
- Spreading rumors about a person’s sexuality;
- Graffiti about a person’s sexuality;
- Stereotypical comments or comments relating to pregnancy or appearance;
- Sexually charged comments;
- Frequent jokes about sex;
- Letters, notes, e-mails, telephone calls, or material of a sexual nature;
- Displays of pictures, posters, calendars, cartoons or other materials with sexually explicit or graphic content; and
- Sexually suggestive sounds or gestures.