NYS Attorney General Issues Guidance on Preventing & Correcting Sexual Harassment in the Workplace

On December 6, 2017, amidst the recent barrage of publicized sexual harassment and sexual assault allegations made against various news organizations, politicians, and Hollywood elite, New York State Attorney General Eric T. Schneiderman released “Know Your Rights” guidance on sexual harassment in the workplace.  The purpose of the guidance is to inform New Yorkers about the laws that protect them from sexual harassment at work and to provide victims of sexual harassment with information on the appropriate agencies to consult should they seek to file a complaint or take legal action, along with helplines for further support.  The guidance highlights the following:

Sexual Harassment Defined – Sexual harassment occurs when unwelcome conduct of a sexual nature is used as the basis for making employment decisions, like hiring or firing, or is so frequent or severe that it creates an intimidating, hostile, or offensive work environment.

• The conduct can be verbal, visual and/or physical, such as unsolicited sexual advances, sexually offensive remarks or jokes, comments about a person’s gender or sexual orientation or preferences, unwanted touching, and sexually suggestive gestures.
• Sexual harassment can be committed by a supervisor, co-worker, or third-party vendor/customer/client who comes into the workplace.
• Protections apply to both men and women, and same sex harassment is prohibited, regardless of sexual orientation.

Avenues of Relief – Laws prohibiting sexual harassment include Title VII of the Civil Rights Act (“Title VII”), the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”).  The scope and procedure for filing complaints differ under each law.

• Those who feel they have been the victim of, or who have observed sexual harassment should first report it to his/her employer pursuant to the employer’s internal policies. Individuals may also consult an attorney to determine whether to file a complaint with a government agency or a lawsuit in state or federal court.
• Agencies who handle sexual harassment complaints include the New York State Office of the Attorney General Civil Rights Bureau (“OAG”), the New York State Division of Human Rights (“NYSDHR”), and the Equal Employment Opportunity Commission (“EEOC”).
  • The OAG represents the People of New York (not the individual complaining party) when it discovers evidence of a pattern, practice, or policy of sexual harassment.
  • The NYSHRL allows individuals to file a complaint against employers of any size with the NYSDHR or proceed directly to court.
  • Sexual harassment complaints under Title VII may only be brought against employers with more than 15 employees and must be filed first with the EEOC before commencing a lawsuit.

No Retaliation – The law also prohibits retaliation against anyone who has filed a complaint about sexual harassment in the workplace.

Criminal Liability – Sexual harassment may constitute a crime, under theories of stalking and/or assault.

Sexual harassment in the workplace is a serious problem that affects many employees and organizations.  As stated by A.G. Schneiderman, “We all have a stake in preventing [sexual harassment] and stopping it when it happens.”  Addressing sexual harassment in the workplace provides a benefit to employees and employers alike.  Employees have a right to feel secure in the workplace, and employers can have liability in situations where harassing behaviors is permitted whether by supervisors, subordinates, peers, customers, vendors, and contractors. Employers can reduce the risks of claims of sexual harassment in the workplace by arming its employees with tools to deal with inappropriate workplace behavior and sexual harassment allegations.  This includes a well-crafted sexual harassment prevention and complaint policy and routine training for managers and supervisors.

For more information about how anti-harassment laws affect your company or how your company can effectively prevent and address complaints of sexual harassment, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@genovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com, or 973-533-0777.