Sexual Harassment in the Workplace
Let me begin my remarks by commending both Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie for hosting these additional hearings to address Sexual Harassment in New York in order to seek legislative solutions to the ongoing scourge of sexual harassment. This is terribly important work and we need to leave no stone unturned in working out ways to make our workplaces fairer and safer, as a starting point for making our society fairer and safer.
I am Brad Gerstman of GerstmanSchwartz, LLP. As a former Bronx Assistant District Attorney I took pride in ferreting out corruption and in prosecuting violent criminals and in private practice it have been my privileged to fight to vindicate the rights of victims of all forms of abuse including sexual harassment and employment discrimination of every kind and other labor law violations.
In our Country sexual harassment has been illegal since 1964 yet sometimes it seems as if we will never stamp out this evil. Still we’ve made some important inroads.
In 1964, the Civil Rights Act of 1964 was passed prohibiting discrimination in the workplace based on race, religion, color, sex, and national origin. This discrimination was made illegal in Title VII of the act.
To this day we fight for victims of discrimination in court using this landmark law!
In 1968 an Executive Order expanded these protections to federal contractors. In 1972, Title IX prohibited discrimination based on sex in schools and expanded the scope of sexual harassment legislation. In ‘78 the Pregnancy Discrimination Act prohibited employment discrimination of pregnant women. In ‘80 the EEOC declared sexual harassment illegal. In ‘86, the Supreme Court ruled that sexual harassment was indeed sexual discrimination. The Civil Rights Act of 1991 expanded workforce protections including very importantly … providing the right to a jury as well as compensatory and punitive damages as a result of the harassment. The Violence Against Women Act of ’94 provided evidentiary protections to claimants and in 1998 the Supreme Court held employers were responsible for the behavior of their managers and clarified quid pro quo sexual harassment.
Historically the Federal government has lead the way but still the federal standard is in some respects imperefect. Under federal law, in order to sustain a claim for sexual harassment based on a hostile work environment one has to allege that the workplace discrimination is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.
This pervasive language has been interpreted at times as a shield for employers and bad actors who tend to argue that a single act of sexual harassment is not enough to sustain a claim. Of course criminal sexual assault is not generally protected but that’s small comfort. See (Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999) Petrosino v. Bell Atlantic, 385 F.3d 210, 224 (2d Cir. 2004).
Thankfully in New York City Human Rights Law unlawful sexual harassment may be found if there has been any sexual harassment or mistreatment on account of an employee’s gender. The NYC standard is more progressive than federal or state law so a single incident may be enough in New York to sustain a claim.
California State law recently seems to have taken a step toward New York City’s standard making it clear that a single incident of harassment is sufficient for a claim to proceed to a jury trial if the incident interfered with the victim’s work or created a hostile work environment. Casual incidences of discriminatory comments or “stray remarks” in the workplace can be considered circumstantial evidence of discrimination.
In New York State Governor Cuomo and the State legislature under the leadership of both Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie in the 2019 Budget Act made enhancements to the New York State Human Rights Law, expanding protection of the employee against sexual harassment under the New York State Human Rights Law by “non-employees,” which would make the employer liable for acts of sexual harassment by contractors, subcontractors, vendors, consultants, and other persons providing services pursuant to a contract.
This is a major leap forward. However, the next frontier however must be to make it clear that the so-called “isolated incident” defense is no defense at all.
Whether we call this the California standard or take local pride and call it the NYC standard it seems high time we make it clear even one act of serious sexual harassment will not be tolerated.