New York Employment Lawyer Blog

The Los Angeles Times reported that an executive with Northwestern Mutual Investment Services twice put his semen in a woman's water bottle at work. The first time it happened, the woman drank the semen laced water and felt ill. She threw the water bottle away and did not know what caused her illness. Several months later, she felt ill again after drinking from another water bottle and this time she saved the bottle and sent it out for testing. The test revealed that the water contained semen. DNA tests later confirmed that the semen belonged to Michael Kevin Lallana, a Field Director with Northwestern Mutual Investment Services. Mr. Lallana was arrested for assualt and releasing an offensive material in a public place and he was fired. See the Los Angeles Times article for more.

The story did not mention sexual harassment claims but such a claim may follow. The conduct is so offensive that it is a crime, but does the conduct also amount to sexual harassment? This would not be a clear case, but it might arise to a sexually hostile work environment. To make such a claim, the conduct must be based on sex and it must be severe and pervasive.

The first question is whether this conduct is sexual or not. This begs the question, what is sex when it comes to sexual harassment? Putting semen into someones drinking water is disgusting, but is it sexual? It has a sexual connotation because it involves semen, but putting it in someones drink is not necessarily sexual. The answer is not clear. The conduct was not overtly sexual because the victim did not know she was drinking semen until the lab tests revealed its presence in the water. However, the man's actions violated the victim because he caused her to swallow his seamen against her will and that resembles rape which is sexual. In my view, this is sexual conduct because it involves a man putting his sexual fluid into a woman.

Second, the conduct at issue must be severe and pervasive. Here, the victim ingested semen twice. Is that enough to constitute severe and pervasive conduct? Normally, the offensive conduct has to be repeated frequently over time, but if the conduct is offensive enough, then the frequency requirement is reduced. Here, we have extremely offensive conduct but low frequency. Since the conduct is so outrageous and offensive, a finding that it was severe and pervasive is more likely.

Other legal hurdles exist in such a case. In many states and under federal law, the company might not be liable because it was not made aware of the conduct and once it learned of the conduct, it promptly terminated the offender.

The sexual harassment law in New York City is different than the federal and New York State laws. This was explained in the post below. The New York City law is excellent and a credit to the City law makers because it provides genuine protection against sexual harassment. The federal and New York State laws, however, are ineffective in preventing sexual harassment because they give companies an easy out. There is one major difference between the New York City law and the Federal and State law.

The New York City law recognizes that sexual harassment victims generally do not report the harassment. If a woman is sexually harassed by a supervisor at work, she knows that reporting the harassment is unlikely to stop the harassment and reporting it will probably ruin her career. The only real option for a sexual harassment victim today is to leave the company. The New York City law recognizes this and there is no obligation to report sexual harassment by a supervisor to the company. Not so under the federal and New York State law.

Under the federal and state law, a woman who is sexually harassed by her supervisor is required to report the harassment to the company. This is an absurd requirement and it proves that federal and state law makers are out of touch with reality. These laws force a woman to commit career suicide just because she is sexually harassed by a supervisor. It almost appears that these laws were created by a bunch of old men who are clueless. Actually, the federal law was created by the US Supreme Court, which until recently was overwhelming male. Now there are two females on the court and maybe they will sway the old men out of their arm chairs and into reality. A more balanced court is needed to create realistic laws. The federal sexual harassment law is a good example of a law that might have good intentions but actually weakens the rights of those it was designed to protect.

Sexual harassment cases in New York City just got easier to win. The highest court in New York ruled that one of the key defenses used by companies in defending sexual harassment cases is no longer available.

New York City has its own sexual harassment and anti-discrimination law. This NYC law is stronger than the federal and New York State employee rights and sexual harassment laws. The federal and New York State laws contain built in defenses that make it easier for companies. Under these federal and state laws, a company can avoid liability for sexual harassment if the victim fails to report the sexual harassment to the company. This loop hole was a real problem because many sexual harassment victims do not report the harassment and this ultimately lets the company off the hook.

But now, under this new law, sexual harassment victims in New York City who are harassed by a supervisor, do not need to report the harassment to the company. New York City employers are now strictly liable for the sexual harassment of supervisors. The case is called Zakrzewska v. The New School and it is a real boost for employee rights in New York City.

This is a very hard question to answer. I usually ask a few questions before providing a response - do you want to? Why? The first thing you need to do is look in the mirror and ask why you want to leave. If you can convince yourself (or maybe your spouse or another trusted person in your life) that you are not being treated fairly and need to leave, then you should start to plan a departure. Don't make a hasty decision. With few exceptions, you can't take back a resignation, and if you have access to sensitive company information, your departure may be hastened if your employer perceives any threat of disloyalty.

Practically speaking, the problem with resigning is that the law does not encourage it. With few exceptions, a resignation means forfeiting your right to unemployment, recovery for having to leave the workplace due to harassing behavior, entitlement to any unpaid bonus compensation (even earned) and/or a severance payment. Why are people forced to endure unfairness? If I had a dollar for every time I answered this question, I'd be a rich man. Public policy encourages employment, even if this creates hardship for some.

If you must leave the workplace, consult with an attorney about the best way to go about it. If you are leaving due to workplace hostility, you will need to know (1) what you are allowed to remove from the workplace, (2) what you should say/do on your way out and (3) what type of treatment and compensation you can expect from your employer after you resign.

I frequently receive calls from potential clients who have been fired after reporting a supervisor's affair with a subordinate. Is it illegal to fire an employee for reporting a supervisor's affair with a subordinate? The short answer: probably not. The EEOC does not consider isolated incidents of "sexual favoritism" to be violations of Title VII. However, coerced sexual conduct by a supervisor may constitute quid pro quo harassment, and "widespread favortism" may give rise to a hostile work environment claim. What is "widespread favoritism"? Generally, it means more than one affair in the workplace resulting in greater opportunities for paramours. The EEOC, and many state and federal courts, have determined that "widespread favoritism" communicates to all female employees that they can obtain job benefits only by acquiescing in sexual conduct. I represented an employee who was fired for reporting his supervisor's affair. In a complete coincidence, a year later, I was contacted by the paramour seeking to sue the same employee for defamation. Workplace affairs are a nasty mess. Nobody should be forced to work for someone who promotes paramours, but if you must, play the game long enough to find another job. If you feel truly humiliated and degraded by a culture of affairs and meritless advancement, call a lawyer. If you are having an affair with a subordinate, do yourself and your employees a favor - stop.

At the end of the 1978 movie "Animal House," before the credits role, the fate of the degenerate frat boys at the heart of the story is revealed in short clips. John "Bluto" Blutarsky, played by John Bulushi, becomes a U.S. Senator, and others become doctors and diplomats, the joke being that drunken depravity is not a liability in some supposedly respectable professions.

If you are an employee in a law firm or medical office, don't expect a civil work environment simply because you work among the well-educated. The Blutos of the world, often blessed with social privilege and elite schooling, take their depravity into adulthood. In fact, there are plenty of professional offices which become small social clubs, like fraternities, centering on the same rituals of drinking and debauchery.

Sexual harassment involves the exploitation of power. Doctors' and lawyers' offices are not immune to these abuses.

Look at her - she does not want him to touch her and he does not get it. What should you do if your boss touches you inappropriately at work? First, tell him to stop. If he continues, check the employee manual and follow the sexual harassment complaint procedure and report it in writing. If the company does not help you, then you need the help of someone outside of the company like an employment lawyer or the Equal Employment Opportunity Commission.

Most every large employer in New York has some kind of employee manual with a sexual harassment policy. This policy will typically tell you how to report the harassment. For example, it might tell you to report the sexual harassment to human resources or it might even give you the name of someone or a phone number to call. You have to follow this manual and report the sexual harassment. You need to let the company know what is going on and give them a chance to fix the problem.

Do not hold back when you report it- be honest and tell the whole story even if it is embarrassing or crude. The company needs to know. You should put the complaint in writing and ideally you should see an employment lawyer so they can help you draft the complaint. Many companies will take action and stop the harassment. But if they don't stop it, then you can take legal action. But - if you do not initially follow the company’s sexual harassment complaint procedure, you may not be able to take legal action. The point is that you need to give the company a chance to fix the problem first.

Anita Hill, the woman well known for testifying during the Senate confirmation hearing of then-Supreme Court nominee Clarence Thomas about alleged sexual harassment, has written an interesting article about the Anucha Browne Sanders $11.6 million jury award against the New York Knicks. In the article, Ms. Hill worries that the recent punitive damages award will cause the NBA and other institutions to hire fewer women. This is not only unfortunate but also ironic. Punitive damages are awarded not to compensate the plaintiff but to deter this conduct in the future. However, from a purely economic standpoint, I can see an institution shying away from hiring a women merely to prevent this type of litigation at some future time. Sexual harassment verdicts are unpredictable.

Stephanie Rosenbloom has a great article in the New York Times today about office dating, "Boss's Memo: Go Ahead, Date (with my blessing)." Since most of us spend most of our time at work, it is no surprise that many of us date at work. Rosenbloom's articles explains that while once taboo, office dating is now OK - people accept it and companies are coming around too.

One of the major concerns that companies have about office romance is the potential for sexual harassment suits. But that is decreasing.

Lets look at the core of sexual harassment and why it is illegal. Sexual harassment laws were created to protect people from unwanted sexual or romantic attention at work. The workplace presents risks that are not normally present. For example, a boss could abuse his authority to coerce another into a relationship by threatening termination or demotion etc. Also, at work one could be forced to spend time or share space with someone who does not realize that "he's just that not into it's you." If you work with someone like this, report them, and change your style to turn them off. When these options have been exhausted then it's time to write emails and letters to HR and tell them to help clean up the dating damage. If the company chooses to ignore the issue, then be even more pro-active and sue the company because they just don't get it.

So this sexual harassment stuff is reserved for extreme situations and overly zealous employees. Most office romances are perfectly legal and it is how many of us fall in love. Here are seven ground rules for survival:

1. Date people who do not work near you because it's not comfortable for your peers and clearly you don't want to be near them if it doesn't work out.
2. Don't date your boss because what if you get promoted to his or her level. That could be a deal breaker for your relationship.
3. Don't hide it. No one likes sneaky people so don't be one.
4. Check the company personnel manual first. If the company does not want you to date at work, then don't at the office.
5. No PDA at work because it's not as cute as you might think.
6. If you are a boss and you date a direct subordinate, you are risking your job.
7. If you mix love and work, draw clear boundaries and don't cross them. Work is work and keep it that way.

Good luck and date smart if it you are going to have an office romance.

A jury has found that New York Knicks Head Coach Isaiah Thomas sexually harassed a female employee of the New York Knicks, “subjecting her to unwanted advances and a barrage of verbal insults.” Although the jury ruled that Thomas will not have to pay the woman any punitive damages, the fact that the Knicks now have a head coach who has been found to be a sexual harasser by a jury is bound to cause problems in New York.

However, the jury also found that Madison Square Garden, the company that employs Thomas [and once employed Thomas’ female victim, Anucha Browne Sanders] also harassed Browne Sanders and will have to pay her punitive damages – the amount has yet to be determined.

While Thomas, who is married a father of two, denied the sexual harassment charges, he did admit trying to kiss Browne Sanders in December 2005, asking her “No love today?” when she recoiled.http://www.ottingerlaw.com/sexual-harassment-0/

Today the judge in this New York case said that the plaintiff had presented a weak sexual harassment case under New York law. Not a good sign for Anucha Sanders. The jury could be strongly swayed by the judge's views. In the courtroom, the judge is the boss - the authority. The jurors look up to to the judge for guidance and if he expresses an opinion about the case, that can influence the verdict.

Now that the TV networks are broadcasting the fact that the judge has a dim view of the plaintiff's case, Ms. Sander's lawyers should think about settling this case fast. Mr. Thomas and the Knicks may not be in any mood to settle the case. They might want to get a verdict to vindicate themselves.

Also, from what I have read in the papers, it seems that Ms. Saunder's case is based largely on the fact that Mr. Thomas called her a bitch or a "ho." Even if he said these words, this only proves that Mr. Thomas curses at work and denigrates woman - but it does not prove sexual harassment in New York. It might be evidence of gender bias, but this is a case of sexual harassment.

I often get calls from prospective clients not only in New York City but from all over the country, who are clearly victims of sexual harassment. These calls are most often from women who have been working at their job for many years and desperately need to keep their job for financial reasons. These women explain their situation to me, give egregious examples of the sexual harassment they face at work and then are reluctant to disclose their name or the name of their employer. Sometimes they say they will call back but often they do not call back. They are too scared to move forward with a lawsuit, for fear of damage to their reputation, the short term financial crisis that they might face, and out of fear that they will get fired. I only hope that these women are brave enough to come forward and that the stigma of filing a complaint for sexual harassment can be lifted sooner rather than later.

The U.S. Equal Employment Opportunity Commission (EEOC) today announced the settlement of a discrimination lawsuit against GLC Restaurants, Inc. (GLC) for $550,000 and substantial remedial relief on behalf of a class of teenage workers who were sexually harassed by a middle-aged male supervisor, including unwanted touching and lewd comments. Flagstaff based GLC is a franchisee doing business as McDonald’s Restaurants in Arizona and California.

The EEOC maintained in the suit that the male supervisor in question was a repeat offender who subjected eight young women, who were part-time crew members, to a sexually hostile workplace at the McDonald’s run by GLC in Cordes Junction, Ariz. Previously, the same male manager allegedly harassed teen female employees at a GLC-owned McDonald’s Restaurant in Camp Verde, Ariz. The EEOC said that GLC knew of this manager’s earlier conduct but failed to take appropriate action to prevent him from repeating the unlawful behavior at another of its restaurants. The EEOC also alleged that the working conditions for one teenager in Cordes Junction were so intolerable that she was forced to resign.

“This was the first job experience for many of these young women, some of whom were only 14-years old at the time,” said EEOC Trial Attorney Michelle Marshall. “No one should have to endure sexual harassment to earn a paycheck. Employers must be extra vigilant in protecting teen workers, who are one of the must vulnerable segments of the labor force.”

In addition to paying $550,000 to the eight young women, the EEOC settlement by consent decree requires GLC to provide training and other relief aimed at educating its employees about sexual harassment and their rights under Title VII of the Civil Rights Act. Under additional terms of the settlement, Prescott attorney Milton W. Hathaway, Jr, the private lawyer for four of the young women, will apply to the court for an award of attorney fees up to $400,000.00.

EEOC Regional Attorney Mary Jo O’Neill, who oversaw the case, said, “Employers have a responsibility to take appropriate corrective and preventive action the first time they learn of discriminatory conduct in their workplace. We encourage employers to take adequate steps to protect the rights of all employees. Promoting a positive workplace for teens by stopping harassment before it starts is in everyone’s best interest.”

Continue reading "EEOC Settles Sexual Harassment Case for Eight Young Women" »

The New Jersey state Supreme Court has unanimously ruled that schools can be held liable for repeated, prolonged student-on-student sexual harassment. The case involved a New Jersey boy who contended he was victimized by years of homophobic taunts and attacks until he finally withdrew from school.

The court ruled unanimously that New Jersey's Law Against Discrimination was intended to protect students from harassment based on sexual orientation, and that it is up to school districts to take reasonable steps to stop ongoing mistreatment.

Chief Justice James Zazzali analogized students to employees and held that students were entitled to a hostile-free educational environment, much like employees are entitled to a work environment that is free from sexual harassment.

"Students in the classroom are entitled to no less protection from unlawful discrimination and harassment than their adult counterparts in the workplace," Zazzali wrote. "Reasonable measures are required to protect our youth, a duty that schools are more than capable of performing."

The case was sent back to the Office of Administrative Law for a hearing on whether the school district was negligent.

The Attorney General's Office praised the ruling as added protection for students against sexual-orientation harassment and bullying.

"We applaud the court for issuing a decision that recognized the promise of the New Jersey Law Against Discrimination to eradicate the cancer of discrimination," said Attorney General spokesman Lee Moore.

"Children are there most of the time during the day, and a child needs to be safe and not learn in an environment that's filled with harassment," Dennisha said. "In my school, there were some incidents where kids were picked on and harassed, and they brought in a program about no bullying and teasing."

The decision caps a discrimination suit brought by a student against the Toms River Regional School District. The student, identified in court filings as L.W., contended he endured name-calling and other sexual harassment beginning in the fourth grade. The taunts escalated to physical assaults that did not end until the boy withdrew to attend private school as a high school freshman, at the district's expense.

The district employed progressive disciplinary action against some offending students, the filings show, but the reprimands were student-specific and were not accompanied by any organized reinforcement of the district's anti-discrimination policy.

State law requires New Jersey public schools to have an anti-discrimination policy that specifically protects students from harassment because of their sexual orientation or gender identity, according to Gay, Lesbian and Straight Education Network spokesman Daryl Presgraves.

A Manhattan jury has ordered New York City to pay $1 million to a corrections officer who claims he was sexually harassed by a female captain at Rikers Island.

The New York Daily News reports the jury in Manhattan federal court deliberated less than two hours Wednesday before finding that officer Scott Singleton was forced to work in a hostile environment.

Singleton's lawsuit claimed he was subjected to sexual harassment and blackmail by Capt. Robin Walker.
The 36-year-old Singleton said he rejected an offer in 2004 to spend the weekend with Walker. He told Walker he was living with another Rikers Island officer and they had a child together.

Singleton's attorney Fred Lichtmacher told the Daily News that Walker sent an anonymous letter to Singleton's girlfriend claiming he had been unfaithful.

The 49-year-old captain has rejected the sexual harassment charges.

The city is deciding if it should appeal the verdict.

As an employment attorney in New York, I often meet with prospective clients who come to my office regarding potential cases involving sexual harassment against their employer. Very often, much to my dismay, after having the prospective client tell me their unfortunate story, I ask them whether they ever complained to Human Resources, their superior, their manager or anyone else, about the conditions they have been subjected to. Most times the prospective clients tell me they NEVER told anyone, let alone a superior, about the conditions at work. To be successful in a sexual harassment case against an employer in New York, it is imperative that the plaintiff has some record that shows he or she complained about the sexual harassment to a superior and that nothing was done to fix the issue.

Employment attorneys hired by employers to investigate cases of sexual harassment may be sued for negligent misrepresentation by the employee whose claim they are investigating. In a recent decision by the Federal District Court for the District of New Jersey, it was held that when the employer’s attorney offers advice or interpretations of law to the purported victim they can be sued for negligent misrepresentation.

In Spagnola v. Morristown, the Federal District Court, using the New Jersey common law standard for negligent misrepresentation, found that the outside lawyer hired by the municipality to investigate Spagnola’s claim of sexual harassment negligently misrepresented Spagnola. The attorney went beyond collection of facts and told her that the town wasn’t going to do anything; that it didn’t have to; and that she was not sexually harassed because there was no touching or direct harassing language. Spagnola had been forced to view explicit materials by her boss. Upon hearing this advice, Spagnola continued in her job and suffered further sexual harassment.

An attorney can owe a duty of care to a non-client if the attorney knew or should have known that the non-client would rely on the attorney’s representations and if the alleged client was not too remote from the attorney to be entitled to some measure of protection. This case re-emphasizes the importance of setting clear delineations between clients and victims/witnesses when investigating cases of harassment. Employer’s attorneys must restrain investigations to fact gathering and interviews or risk a Spagnola lawsuit.

I recently mediated a sexual harassment case between a very wealthy, high profile businessman and his male employee. My client was fired after he refused to have sex with the boss. Nobody really disputed the basic facts of the case, but the mediation eventually turned on my client’s MySpace page and his “profiles” on other gay dating websites. The opposition argued that due to the explicit nature of his postings, particularly on a site called ManHunt, where he listed certain sexual preferences, that my client’s emotional damages should be severely limited.

When I first interviewed the client, I asked him a number of questions about any embarrassing photos or videos that might be out there, but never asked about any web postings. Luckily, a colleague of mine in her 20’s suggested I check to see if the client had a MySpace page. After seeing the fairly innocuous site, I advised him to curb that activity or be very careful what he posted. However, I never thought about advising him about any other websites, and he never thought it was significant enough to volunteer the information.

During the mediation, the mediator, an extremely experienced litigator with a stellar reputation, who graduated law school in the 1950’s, was visibly upset by the postings. He didn’t understand about the prevalence of online dating, or that, for many people, this has become an acceptable way to meet people. I argued that in certain communities, having a profile on a hook-up site wasn’t a big deal, and just because my client had one didn’t mean that he should have been fired for not sleeping with his boss. Neither explanation went over very well. The mediator used the rather compelling argument that, while we may not think it was a big deal, he was very disturbed by the language, and an arbitrator or jury, may be as well.

This got me thinking. Neither my colleague nor I truly thought it was relevant or a big deal, but we were looking at the information from our own perspectives. Would a jury or an arbitrator think the same way we did? Probably not. In all likelihood an arbitrator would be of a similar generation as the mediator, and if we were in front of a jury, we would also have jurors who would think it was unusual. When I stepped back, I realized that we would have to do a lot of extra explaining to overcome the information. And the hurdles that we had to go through just with the mediator caused us concern.

Since the mediation, I now ask additional questions during my initial client interview. Even though I have doubts as to whether or not this information could be introduced at trial, from now on, in any type of sexual harassment case, I always mention to my clients that any activity they do online can be easily tracked, and they should probably remove any profiles or postings that they would be embarrassed about having a jury see. Although the web gives us access to a lot of people and information, it also important to remember that it gives a lot of people access to information about us that can be potentially harmful to a case.