The NY Working Woman's Pocket Guide

Am I covered?

If you work for, or are applying to work for, an employer in New York State, then you are covered by anti-harassment law. You are also covered by the law if you are an independent contractor* or domestic worker.

*New York State law defines “non-employees” as contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.

What is harassment?

Harassment in New York State is illegal if if your employer subjects you to “inferior terms or conditions of employment” because you are a member of a protected class. You do not need to show that the harassment was “severe or pervasive” in order for it to constitute unlawful harassment nor do you need to compare yourself to how others are treated.

What does it mean to be in a protected class?

This means that it is unlawful for your employer or co-worker to subject you to harassment or discrimination because of your age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status and domestic violence victim status.

What kinds of behavior constitute harassment, specifically sexual harassment?

Sexual harassment can include a boss or co-worker who:

• Makes your advancement in the workplace (e.g. a promotion, shift change, or access to benefits or job opportunities) contingent upon your doing some kind of sexual favor in return or engages in sexual conduct that is used as a basis for hiring or other employment decisions.
• Makes unwanted sexual advances towards you.
• Makes you feel uncomfortable through words or actions (including digital communications over email, phone etc.) directed either towards you or towards a colleague.
• Makes sexual comments or jokes.
• Pressures you to go on dates.
• Harasses you when you are pregnant (i.e. jokes about your pregnancy weight gain or makes comments about being overly sensitive or emotional because you are pregnant).
• Tries to intimidate you because of your status in a protected class and interferes with your job.

Note: Even if your boss or co-worker makes just one joke or one comment, this could constitute sexual harassment. The behavior does not need to be considered ‘severe’ or ‘pervasive’ in order for you to succeed on a sexual harassment claim. But the behavior must be more than ‘petty slights’ and ‘trivial inconveniences’ for your employer to be held liable.

Am I protected against sexual harassment as a non-employee?

Yes, non-employees such as contractors, subcontractors, vendors, consultants or other persons providing services under a contract in the workplace are protected under the law. Anyone who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace is protected as well.

What happens if my employer punishes me for complaining about sexual harassment or filing a sexual harassment complaint?

It is against the law for your employer to take negative action against you for complaining about sexual harassment or filing a sexual harassment complaint. This means they cannot fire or demote you, cut your hours or pay, force you to take a leave, or re-assign you to a different shift or location.

It is illegal for your employer to retaliate against you for:

• Complaining that another employee has experienced sexual harassment.
  Encouraging a colleague to report harassment.
• Filing a complaint internally with human resources or management of your company or with a government agency.

Does my employer have any obligations to help prevent sexual harassment in the workplace?

Your employer must have a sexual harassment prevention policy in place.

Your employer must conduct annual anti-sexual harassment training for employees.

The training must:

• Be interactive and participatory;
  Provide examples of conduct which constitutes unlawful sexual harassment;
• Provide information explaining the laws around sexual harassment and the rights and remedies available to victims to adjudicate claims; and
• Provide information about the appropriate conduct of supervisors and managers.

Can my employer make me sign a non-disclosure agreement?

No, it is against the law for your employer to force you to sign a non-disclosure agreement as part of a settlement relating to sexual harassment. If it is your preference to include a confidentiality clause in a settlement, you may do so but you must be given 21 days to consider the terms of the confidentiality clause.

Employers are also prohibited from including broad non-disclosure provisions in settlement or separation agreements resolving any type of discrimination claim, not just sexual harassment, unless it is the worker’s preference. Your employer also cannot prevent you from initiating, testifying, or complying with a subpoena related to the complaint, cooperating with an agency investigation into the claim or disclosing facts about the complaint that are necessary to get benefits such as unemployment insurance, Medicaid, or other public benefits.

Can my employer make me sign a mandatory arbitration agreement to resolve a harassment claim?

New York State law also prohibits employees from requiring employees to sign mandatory arbitration to resolve claims of harassment.

Note: A court in New York has found that this law is inconsistent with federal law. As a result, this law may not be enforceable right now.

Do I have any additional rights if I live in New York City?

Yes, if your workplace has 15 or more employees and is in the private sector, your employer must conduct annual sexual harassment training.

The training must:

• Take place within 90 days of the employees hire date;
  Be participatory;
• Provide employees information about any internal complaint process and complaint process available through the Commission, State Division of Human Rights and the Equal Employment Opportunity Commission;
• Provide information regarding retaliation;
• Provide resources on intervention and engaging as a bystander; and
  Explain the responsibilities of supervisors and managers.

Every employer in New York City is required to display an anti-sexual harassment rights and responsibilities poster in a conspicuous area such as break rooms and common areas in your workplace.

A couple additional notes:

• These laws apply to you regardless of your immigration or citizenship status.
• The information listed in this section does not constitute legal advice. It is always advisable to consult with an attorney about your individual circumstances if you have questions or think your rights as a worker have been violated.