The United States, the State of New York and the City of New York have each adopted numerous laws to prevent discrimination and harassment in the workplace. If you feel that you have been a victim of sexual harassment or discrimination you may have the right to recover for your injury. As an employer you have the obligation to vigilantly ensure that the work place is free from harassment and discrimination.

If you are an employee and feel that you have been discriminated against or harassed at work, or if you are an employer in need of advice to prevent harassment in the workplace, you should speak with the experienced employment attorneys at WYLIELAW.

Title VII of the United States Code states "It shall be unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."

Title VII Prohibits discrimination in employment based on race, color, religion, sex and national origin. This law applies to public sector employers, as well as private sector employers who employ at least 15 employees (those with fewer than 15 are usually covered by state law). The above language, which is federal law, is similarly written and codified in New York State law, in addition to New York City (five boroughs) that has its own set of laws. While lesbian and gay rights are not protected under federal or state law, they are protected under New York City law.

In addition to the above federal law, known as Title VII, other laws that are applicable to one's employment are the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA) and the Family Medical Leave Act (FMLA).

One is considered disabled under the ADA if he or she has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.

Under the ADEA, the minimum age for filing is 40, and the employer must have employed 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Under the ADA and Title VII, the number of minimum employees is 15. The above minimum number of employees varies under New York State and New York City laws.

The Family Medical Leave Act requires employers grant employees up to 12 weeks of unpaid leave (within a 12 month period) for a) the birth of a child, b) the adoption of a child, c) a serious health condition that requires a leave of absence, or d) the care of a parent, spouse or child with a serious health condition.

WHAT SHOULD I DO IF I HAVE SUFFERED DISCRIMINATION AT WORK BASED ON AN ISSUE SUCH AS RACE, RELIGION, AGE, GENDER, ETC. ?

The first thing to consider is whether it may be a simple misunderstanding that you can easily clear up yourself, or something more serious that will take an outsider to resolve for you. Discuss it with your employer, supervisor or the individual in charge of human resources; if you are not satisfied with the response you receive from the person to whom you complained, you might need to contact an attorney or file a complaint with the appropriate government agency. Do so as quickly as possible, as Federal Law and many state's laws have strict time limits for seeking relief.

MY WORKING CONDITIONS WERE INTOLERABLE SO I QUIT. IS THIS THE SAME AS IF I WAS FIRED?

Probably. Most states recognize "constructive termination" of employment and treat it similarly to an actual firing. For example, if the employer reduces your wages from $12 per hour to $6 per hour, switches your day hours to the moonlight shifts, and changes your position from executive vice president to coffee gopher, that would clearly be a constructive termination. An employee in a state that recognizes constructive wrongful termination does not have to be fired in order to have the ability to sue an employer for intolerable working conditions. If an employee can prove that an employer created intolerable working conditions in an effort to get the employee to quit, and these conditions were known by the employer, or intentionally created by the employer, then the employee may pursue a constructive wrongful termination action. The remedies available in a successful constructive wrongful termination action are similar to those in a suit due to actual wrongful termination.

Sexual harassment is a form of discrimination based on one's sex. Sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

There are two types of sexual harassment:

1) "Quid pro quo" harassment occurs when decisions regarding employment are promised, threatened or given, based upon whether or not one or more employees will submit to sexually oriented conduct. Quid pro quo sexual harassment is far broader than the blatant, "if you want this job [or promotion or vacation time or reassignment], you'll have to go to bed with me" statements.

2) "Hostile environment" sexual harassment often occurs where the sexually oriented conduct creates an offensive and unpleasant working environment.

Unwanted sexual behavior constitutes unwanted sexual advances and touching, sexual comments, including jokes, sexually suggestive material and/or objects. Generally, such behavior must be repeated to constitute a hostile environment. Recently, a case in New York held that the Plaintiff experienced a hostile work environment as she was exposed to sexual harassment due to the fact that it was happening to others around her, and she complained about it to her supervisor, although she herself was not "sexually harassed."

The United Sates Supreme Court has ruled that for an employer to be liable for sexual harassment, the employer must have actual or constructive knowledge of the harassment, and fail to take remedial action to correct the harassment. Additionally, an employer must provide to an employee a reasonable avenue of redress to complain about potential harassment. Furthermore, a potential plaintiff must utilize such corrective and preventive opportunities provided by the employer. Thus the individual must complain to a person of authority, or follow the proper avenue of redress that was communicated to the potential plaintiff from her employer.

It is possible that an avenue of redress, which was communicated to the employee, may be "unreasonable." The common example is when the individual to whom the employee is to complain is also the individual responsible for the harassment. Under such a set of facts, the employee should complain to that individual's supervisor if possible. Under these facts, it could also be argued that the employee did not have a reasonable avenue of redress, and therefore, the court should hold the employer strictly liable for the damages suffered by the employee. In essence, if one believes that s/he has been sexually harassed, s/he must complain about it to a supervisor or to an individual in human resources (if such a department exists), and for the employer to avoid liability for such alleged harassment, the employer must properly investigate the claim, and attempt to correct it.

WHAT TYPES OF CONDUCT HAVE BEEN FOUND TO BE "SEXUAL HARASSMENT"?

Sexual harassment is far broader than a threat along the lines, "If you want to keep your job, you'll have to go to bed with me." Courts and agencies - after considering all of the circumstances in the particular cases - have found the following types of conduct to be illegal sexual harassment:

• repeated sexual innuendo, obscene or off-color jokes, slurs, lewd remarks and language, and other offensive sexual comments;
• content in letters and notes, facsimiles, e-mail, graffiti that is of a sexual nature or sexually abusive;
• sexual propositions, insults, and threats; sexually-oriented demeaning names;
• persistent unwanted sexual or romantic overtures or attention;
• leering, whistling, or other sexually suggestive sounds or gestures;
• displaying pornographic pictures, calendars, cartoons, or other sexual material in the workplace;
• coerced or unwelcome touching, patting, brushing up against, pinching, kissing, stroking, massaging, squeezing, fondling, or tickling;
• subtle or overt pressure for sexual favors;
• coerced sexual intercourse (e.g., as a condition of employment or academic status).

WHAT SHOULD I DO IF I HAVE BEEN SEXUALLY HARASSED, OR AM SUFFERING IN A HOSTILE WORK ENVIRONMENT?

The first thing you should do is examine the company's sexual harassment policy. Such a policy will expressly set out the person at the company whose job responsibility includes accepting harassment complaints and undertaking an appropriate investigation. If no such policy exists, consider going to the supervisor of the person harassing you. Your employer cannot solve the problem if the employer is not aware of it. If you do file a complaint, be sure to follow up on it so that you can understand whether your employer is addressing the issue. If you fail to pursue the Company's procedures, you may lose your claim.

An alternative route, or if no satisfaction is reached through the company's internal complaint procedures, would be to consult with an attorney who specializes in sexual harassment claims. The attorney can give you specific guidance as to what you should be doing both to document your claim and to protect yourself against retaliation. Very often there are others who were similarly victims of sexual harassment.

The attorney sometimes may be able to informally complain and get the employer's attention so the offending practice is stopped. In other cases, the attorney may help you prepare to file a complaint with the EEOC or an appropriate state or city agency. The attorney, unlike you, knows the ropes and can help you protect your rights should there ultimately be a court case.

In New York, where the filing period is 300 days, any acts that occurred more than 300 days prior to the date that a complaint was filed with the EEOC, the NYSDHR or the NYCCHR would not be considered by the agency in its consideration of the complaint. Further, this may affect whether these prior acts may be considered by a Court of law [if you seek a private action subsequent to your EEOC filing]. As such acts would be considered untimely, unless such prior acts are deemed to be "continuous discrimination" with the subsequent acts, which are considered timely [occurring within 300 days of filing with the EEOC]. However, Courts are very leery about what acts may be considered continuous.

Thus, if an individual believes that s/he has been victimized by employment discrimination or sexual harassment, such individual should:

1. consult with an employment attorney;

2. follow the internal grievance/complaint procedure;

3. file a complaint with the appropriate government agency

WHAT IF I MAKE A COMPLIANT AND THEN I SUFFER AN ADVERSE EMPLOYMENT REACTION OR AM FIRED?

It is illegal for an employer to retaliate against an employee who has made a complaint of sexual harassment, discrimination or hostile work environment. The same Federal, State and City laws that protect the employee from the harassment, discrimination and hostile work environment, also protect the employee from suffering any adverse employment action based on a complaint. Additionally, it has been held by a Court that a retaliation claim may exist even if it is proven that the underlying harassment, discrimination or hostile work environment claim was not valid if the employee that made the complaint believed it to be valid and suffered an adverse employment action due to the invalid complaint.

I AM AN EMPLOYER. WHAT CAN I DO TO PREVENT SEXUAL HARASSMENT IN MY WORKPLACE?

Sexual harassment is illegal, bad for company morale and therefore, bad for business.

You should develop a written policy concerning sexual harassment, which clearly states that it is not only against the law, but also against company policy, and will not be tolerated.

You should create an effective complaint or grievance procedure for employees who have been victims of sexual harassment. The procedure should make it easy and comfortable for an employee to file a complaint, especially if the harasser is a direct supervisor. The procedure should also be such that a solution to the problem can be arrived at quickly and effectively.

You need to take complaints seriously, and respond to them as quickly as possible.

You may also consider purchasing commercial lines of insurance that could cover sexual harassment claims.

HOW CAN AN ATTORNEY HELP MY COMPANY AVOID PROBLEMS?

An attorney can review your sexual harassment policy, grievance procedures and employee handbook or manual, or assist you in drafting a policy and conduct sexual harassment / sensitivity training for your employees.

An attorney can advise you on how to deal with otherwise valuable employees who may be creating a problem, without leaving the company open to claims from other employees or from the alleged offender if the claims turn our to be unfounded. For example, if your leading salesman is acting inappropriately, counsel can help you to get the message across so that you don't lose the productive sales person and so that you don't suffer the indignity (and expense)of having a sexual harassment lawsuit filed against you and/or your company.

If you receive a sexual harassment complaint, get a knowledgeable attorney on board quickly. If the investigation is conducted under the auspices of an attorney, it is more likely to be protected against discovery production during litigation because it is privileged as "attorney work product." The attorney will also help make sure the investigation of any alleged harassment is both thorough and confidential, and that any disciplinary action taken is prompt and appropriate. Swift and effective handling of initial allegations help both with the case at hand and to prevent future incidences of harassment. As in many other things, hypocrisy hurts.

IS AN EMPLOYER LIABLE IF A SUPERVISOR ENGAGES IN HARASSMENT?

Yes. The Supreme Court said in a June, 1998 decision: "An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee."

When a fellow employee harasses, the victim can walk away or tell the offender where to go. However, when it involves a supervisor or somebody with supervisory authority (responsibilities may include decisions to hire and fire, to set work schedules and pay rates, vacation schedules, performance reviews) the employer must be strident in its reaction. Recognition of employer liability when discriminatory misuse of supervisory authority alters the terms and conditions of a victim's employment is underscored by the fact that the employer has a greater opportunity to guard against misconduct by supervisors than by common workers; employers have greater opportunity and incentive to screen them, train them, and monitor their performance.

To avoid the liability when no tangible employment action was taken against complaining employees, the employer may attempt to prove that (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

IS AN EMPLOYER LIABLE FOR HOSTILE WORK ENVIRONMENT HARASSMENT?

If an employer is aware of a hostile environment, and has not taken any appropriate action to correct the problem, then the employer may well be held liable for the harassment.

However, whether it was supervisors, co-workers, or customers who created the hostile environment, if the employer is not made aware of the situation, the employer should not be held responsible for hostile environment harassment.

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