As we all know, discrimination can occur in many different forms – yet when we think of sexual harassment, we would not ordinarily categorize it as discrimination, but it is most certainly. Sexual harassment falls under the classification of sex and/or gender discrimination and in continuing our discussion of how the Restoration Act has expanded the bounds of the New York City Human Rights Law, let’s examines how it has affected sexual harassment cases.
Before the Restoration Act had been passed, New York Courts had treated sexual harassment as it had been treated under the Federal law. Under federal law, hostile environment sexual harassment is actionable only when it qualifies as “severe and pervasive.” This is quite a high burden, especially when sexual harassment can often occur in subtle form versus overt action. Luckily, the Restoration Act sought to dispense with this test, and with that in a series of cases the Appellate Division characterized this standard as “routinely barr[ing] the Courthouse door to women who have in fact been treated less well than men because of gender.” As a result, aggrieved victims are now only required to prove that they were treated less well than men in order to get a harassment case to a jury – clearly, a more fair approach.
The New York Court of Appeals has also chosen to draw another distinction between the Federal approach of assessing defenses to hostile environment sexual harassment cases and New York City’s. Under Federal Law employers have a defense to a hostile environment sexual harassment charge if: (1) the employee did not sustain a tangible employment action as part of the alleged harassment; (2) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (3) the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.
The Court held that the New York City Human Rights Law precluded application of the affirmative defense, as did its legislative history, which specifically provided for “[s]trict liability in the employment context for acts of managers and supervisors.”[3] The court noted that while historically, the court has interpreted state and local civil rights statutes “consistently with federal precedent,” it has done so only where the statutes “are substantively and textually similar to their federal counterparts.” This decision was a landmark win for the aggrieved and innocent victims that simply seek justice in the face of unwanted sexual advances.
As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.