How Often Does Sexual Harassment Occur in the Workplace

Approximately 15,000 sexual harassment cases are brought to the Equal Employment Opportunity Commission (EEOC) each year. Remember, many more actions are brought privately by sexual harassment attorneys. According to the EEOC, the number of sexual harassment complaints filed by men has more than tripled in recent years. Currently, approximately 11% of claims involve men filing against female supervisors.

A telephone poll conducted by Louis Harris and Associates on 782 workers revealed:
• 31% of the female workers claimed to have been harassed at work
• 7% of the male workers claimed to have been harassed at work
• 62% of targets took no action
• 100% of women claimed the harasser was a man
• 59% of men claimed the harasser was a woman
• 41% of men claimed the harasser was another man

Of the women who had been harassed:
• 43% were harassed by a supervisor
• 27% were harassed by an employee senior to them
• 19% were harassed by a coworker at their level
• 8% were harassed by a junior employee

Studies suggest anywhere between 40-70% of women and 10-20% of men have experienced sexual harassment in the workplace.

In a survey of 9,000 clerical and professional women, 92% of respondents experienced overt physical harassment, sexual remarks and leering, with the majority regarding this behavior as a serious problem at work.  Nearly 50% said they or someone they knew had quit or been fired because of sexual harassment, and 75% believed that if they complained to a supervisor, nothing would be done.  These statistics are incredibly alarming. Being that this unconscionable behavior is still so rampant in the workplace, laws should seek to protect targeted individuals rather than protect employers from their non-delegable duty to protect their employees from a hostile environment.

Unfortunately, Federal law seeks to shield employers from liability based on grossly negligent actions perpetrated by supervisors toward lower level employees. Specifically, this affirmative defense to sexual harassment liability under Title VII is available to employers when an employee claims harassment by a supervisor and the employer takes no tangible employment action against the employee and exercises reasonable care to prevent and correct the harassing behavior, and the employee fails to take advantage of any preventative or corrective opportunities provided by the employer. Luckily, New York City’s Human Rights Law is more evolved, disavowing the Federal affirmative defense. The New York City Human Rights Law imposes strict liability on an employer for a supervisory employee’s sexual harassment.

If you believe that you or your family member was a victim of sexual harassment in the workplace, please do not hesitate to contact The Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.




New York City Human Rights Law vs. Americans with Disabilities Act

New York City’s citizens typically have an extremely liberal and tolerant attitude toward people of various backgrounds, religions, and sexual orientations, however, as surprising as it may seem, there exists an enormous amount of bias toward people with disabilities in the workplace.  This bias can manifest in several different ways: 1) harassment because of a known or perceived disability; 2) failure of an employer to provide reasonable accommodations for a disability; 3) retaliation against an employee for requesting an accommodation for a disability; and finally 4) termination because of a disability.  We will explore what constitutes a disability under the New York City Human Rights Law (“NYCHRL”) and provide some examples of disabilities covered under the law to give you a better understanding of your protected rights as as an employee.

The definition of disability under the NYCHRL is less restrictive than under the American with Disabilities Act (“ADA”).   New York State Courts look only to the NYCHRL for purposes of defining a disability.  Reeves v. Johnson Controls World Services Inc. (2d Cir. 1998).  Under the NYCHRL, the term disability means any “physical, medical, mental or psychological impairment or record of such impairment.” Gibbon v. City of New York (S.D.N.Y November 25, 2008).

The NYCHRL has no requirement that an impairment “substantially limit” a person in some major life activity, and thus the requirement is much broader than the ADA.  Weissman v. Dawn Joy Fashions (2d Cir. 2000).   The NYCHRL lenient standard for disability empowers employees to take action based on discrimination of an impairment rather than requiring them to demonstrate a substantial limitation of a major life activity.   Let’s look at some examples.

In Shannon v. Verizon New York, Inc (N.D.N.Y. 2007), the Court found that incontinence (overactive bladder), while not considered a disability under the ADA, is considered a disability under the NYCHRL.

In Smith v. Pilgrim Power Electrical Contracting LLC (S.D.N.Y. September 6, 2011), the Court found that “prostatitis – which is inflammation of the prostate gland,”  constitutes a disability under the NYCHRL.

Additionally, the definition of disability under the NYCHRL is broad enough to embrace persons who, contend that they are not disabled but whom the potential employer perceives wrongfully to be disabled (employer believed that employee was using opiates as a result of urine test, while employee states that finding was a result of his ingestion of health bread containing poppy seeds).  John Doe v. Roe Inc. (1st Dept. 1990).

In the case of Grullon v. South Bronx Overall Economic Development Corporation (Court of Appeals, 2000), the Court found that the plaintiff was disabled or perceived disabled as a result of suffering from alcoholism, and the evidence in that case was sufficient to satisfy the disability element of the plaintiff’s claim.

As demonstrated above, many different types of impairments satisfy the disability element of the NYCHRL.  Unfortunately, despite a disabled employee’s ability to perform their essential job functions with reasonable accommodations, employers still continue to violate the NYCHRL and unfairly discriminate based on disability.

If you believe you are a victim of employment discrimination, please do not hesitate to contact the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.  Don’t let injustice go unchecked.

 


Can Undocumented Workers Pursue Claims for Future and Lost Wages

Undocumented workers and their families  often refrain from coming forward with claims of personal injury and/or wrongful death for fear of deportation and/or incurring criminal penalties.  The section below summarizes recent case law from New York’s highest court holding that undocumented immigrant workers have the right to pursue claims for future and lost wages against negligent employers.

The adjudication of the rights and privileges accorded to undocumented workers remains a very contentious issue in New York and the rest of the country. Against this backdrop, the New York Court of Appeals has ruled on the issue of whether undocumented immigrant workers may pursue claims for lost wages due to personal injury in light of the United States Supreme Court’s decision in Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002) holding that the Immigration Reform and Control Act of 1986 (“IRCA”) (8 U.S.C. §1324a et seq.) precluded the National Labor Relations Board from awarding back pay to an undocumented worker as relief for the termination of his employment in violation of the National Labor Relations Act.

On February 21, 2006, in companion cases, (Balbuena v. IDR Realty L.L.C. and Majlinger v. Cassino Contracting Corp), the Court of Appeals held that illegal immigrants could pursue claims for lost wages. The Court distinguished the factual situations involved in Majlinger and Balbuena from Hoffman. In Hoffman, the undocumented  worker committed a criminal act by supplying fraudulent papers to his employer. There were no such allegations in Majlinger and Balbuena. Additionally, mitigation of damages by further illegally obtained employment was not an issue in Majlinger and Balbuena because unlike the plaintiff in Hoffman, Majlinger and Balbuena alleged serious permanent injuries that impede their ability to be employed.

Although the Court recognized that an undocumented workers’ presence in the United States is impermissible under federal immigration law, it held that this violation was insufficient to deny relief to which undocumented workers were otherwise entitled. Recoveries have been denied to parties due to illegal activity; however, unlike the construction work at issue here, these situations involve cases in which the work performed itself was illegal. Neither the IRCA nor any other law makes it unlawful to be an undocumented worker, except when the immigrant obtained employment through fraudulent documentation.

Finally, the Court noted that a jury could consider a plaintiff’s immigration status as one factor in its determination of damages. The undocumented worker could produce evidence that he was in the process of obtaining the necessary documents to work in this country legally.

As similar cases work their way through state court systems and inevitably the United States Supreme Court, a clearer picture will begin to emerge nationally on the state of the law in this area. This issue is at the forefront of the American political and social landscape, and we are optimistic that  other states’ highest courts follow suit and continue to issue decisions which reaffirm certain inalienable rights of relief for injured workers and their families.