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Serrins & Associates LLC Employment Law Blog

Tuesday, March 6, 2018

What counts as harassment? It depends on the state...

The law is a funny thing. Let’s say the exact same action is performed in two different states. In state one, that action results in a lawsuit, which leads to a trial, which leads to a settlement, and maybe even a full-blown scandal with all the attendant media coverage. In state two, that action results in....nothing. State two, you see, didn’t make that action illegal, and so the consequences for the individual performing the action are nil.

Earlier this month, Carmelyn P. Malalis, the chief of the New York City Human Rights Commission, testified before the California State Legislature. Her focus: New York City’s laws against sexual harassment, and specifically, how New York City has crafted its legal definition of “sexual harassment” to include behavior that, in other states (including California), may go unpunished. In this era of #MeToo, legislatures are beginning to take a hard look at whether their laws are sufficient to deal with a problem that has sprung to the forefront of the public awareness. California - home of Hollywood, which has seen its fair share of sexual harassment scandals - may be particularly sensitive to this issue.

In California, behavior must be “severe or pervasive” to rise to the level of sexual harassment. Expanding on that, the California Supreme Court has held that conduct which “is occasional, isolated, sporadic, or trivial,” does not rise to the level of workplace harassment. The Supreme Court case articulating this standard provides a good example of conduct that does not rise to the level of harassment in California: in that case, a female employee received a mass email from a colleague referring to her as “the big-titted, mindless one.” She also testified that she had heard of other derogatory comments made to female employees. This was not enough to meet California’s standard for sexual harassment, and so she lost her lawsuit.

As it happens, California has opted to follow federal law in this area. A plaintiff bringing a federal lawsuit for sexual harassment must also meet the “severe or pervasive” standard, in which a court must examine the “totality of the circumstances” to determine whether the conduct complained of is legally harassment, including whether it extended for a period of time and how often the conduct occurred. It’s a high burden, and plaintiffs subject to extremely offensive conduct that nonetheless did not extend for a prolonged period of time may find themselves shut out from obtaining justice in the courts.

Compare that to New York City, which has instituted its own standard for sexual harassment independent of New York State. To be legal harassment in NYC, the conduct must be more than “petty slights and trivial inconveniences.” There is no requirement that the conduct be severe or pervasive, or extend for a period of time. The difference for plaintiffs here is huge. To quote Human Rights chief Ms. Malalis: “In reality, this means that any unwanted sexual behavior, including sexual comments or jokes, gestures, touching, texts or emails that create a hostile or offensive work environment, is unlawful in New York City.”

As courts in New York have pointed out, New York City’s standard has the major benefit of encouraging employers to show “zero tolerance” toward any behavior that might constitute harassment, even a stray comment or glancing touch. Had the employee in California subjected to the “big-titted, mindless one” comment found herself in New York, she may have been successful in obtaining justice in the court.

If you are an employee working in New York City who has been the victim of harassing behavior at work - even a so-called “stray comment” - give us a call. We would be happy to discuss your legal options. No one should be harassed in the workplace, in any form - our employment law attorneys are here to help you obtain justice.






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