Sexual Harassment by Customers—Employer Responsibility

Could You Be Liable If a Customer Harasses Your Employee? Employers must address sexual harassment by customers in addition to harassment by other employers. Courts can hold employers accountable if they fail to take reasonable actions to prohibit a hostile work environment and protect an employee. While the “customer is always right” is a maxim that people in business try to follow, under these circumstances the customer is not right. EEOC v. Costco Wholesale Corp. A case in point is the EEOC v. Costco Wholesale Corp. case. The U.S. Court of Appeals for the Seventh Circuit reviewed the case and in 2018 ruled in favor of the EEOC. Case Details A customer stalked a Costco employee for over a year. The employee reported the stalking to her managers. However, because the managers did not believe the harassment was severely sexual in nature, they did not take stronger actions quickly enough to prevent it. After some time, Costco did tell the customer to leave the employee alone. In fact, Costco eventually banned the customer from the store where the employee worked. However, these actions were taken after constant encounters that lasted over more than a year where the customer repeatedly stalked the employee. He constantly asked her personal questions, touched her on several occasions and then came in disguise to observe her and later on, even took a video of her. After her third interaction with the customer, the employee filed a police report about the stalking. Subsequently, the police called the Assistant General Manager about the report, and as a result he yelled at the employee and told her...

What the New Anti-Sexual Harassment Law Means for NY Employers

Is There Liability You Could Face that You Did Not Face in the Past? The NYS new anti-harassment law has a number of sweeping changes. For one, it applies to all protected classes under New York Human Rights Law, not only to sexual harassment cases. Protected classes include discrimination based on: Age Creed Race Color Sex Sexual orientation National origin Marital status Domestic violence victim status Criminal or arrest record Predisposing genetic characteristics New Anti-Sexual Harassment Law Burden of Proof for a Hostile Work Environment The “Severe or Pervasive” Standard Under the previous law, to succeed in a claim, an employee suing an employer for discrimination had to prove that harassment was “severe and pervasive.” Rape or beating up an employee based on their protected class would be obvious examples of a severe act. More often though, the courts looked for pervasive harassment, such as continually making racial slurs or frequently touching the employee in a sexual way over a period of time. Workplace comments had to rise to the level of vulgar and humiliating verbal assaults rather than occasional teasing or jokes. In some instances, a combination of unwelcome physical acts, such as forcible touching and verbal abuse would meet the burden of proof. Unless employees could provide evidence that rose to that level of proof, they would not have an actionable claim. The New Burden of Proof: Rising Above “Petty Slights and Trivial Inconveniences” With the new law, the burden of proof has changed from “severe and pervasive” to “rising above petty slights and trivial inconveniences.” An affirmative defense for an employer is to prove that “the...

Details of the NY Anti-Sexual Harassment Law for 2019

The New NY Anti-Sexual Harassment Law: What Employers Should Know Additional New York State anti-sexual harassment law protections came into existence in August 2019. Under the new law, sexual harassment only has to rise above the level of “petty slights or trivial inconveniences,” which is a much lesser burden of proof. This change will make it much easier for victims to come forward and file a lawsuit against employers. By comparison, under the previous law, the plaintiff would have to prove that sexual harassment was “severe or pervasive.” When Does the New Law Go into Effect? The law will roll out in three stages during the next 60 days. Who Does the New Law Affect and How? The new law amends existing Human Rights Law and includes all public and private employers in New York. Also, the law increases the statute of limitations (time limit to file a lawsuit) from one year to three years. How Do the Changes Affect Employment Agreements? Employment agreements can no longer prohibit employees from filing a complaint with a state or local agency, nor can it prevent them from testifying in government investigations. In addition, the law prohibits employers from requiring mandatory arbitration in settlement agreements. Arguments against the law and that are in favor of employers are that this is unfair because it weakens employers’ affirmative defense. They would incur significant liability for behavior that occurs outside of work hours that they have no way of knowing about. How Are All Individuals in the Workplace Protected? The new law extends protection beyond private company or government employees and offers protection to the...

A Look Back on Sexual Harassment Charges in 2018

EEOC Sexual Harassment Charges Statistics Surged The increase in sexual harassment lawsuits brought by the EEOC was 50 percent higher in 2018 than they were in 2017. The EEOC filed 66 harassment lawsuits, and of those, 41 involved allegations of sexual harassment. New charges filed with the EEOC that alleged sexual harassment were more than 7,500, which was 12 percent higher than in 2017. The EEOC recovered close to $70 million in settlements of cases that involved sexual harassment issues, which compared with the $47.5 million in settlements recovered for 2017. As the new year begins, we often look back to the previous year, reflect on the changes and hone our perspectives toward progress for the coming year. Facts about the #MeToo Movement and Its Effect on Sexual Harassment In October of 2017, rape and sexual misconduct allegations against Harvey Weinstein were the springboard that propelled the #MeToo movement. Sexual harassment took center stage in the American media’s spotlight. The #MeToo Movement is a movement against sexual harassment and assault. Tarana Burke was the social activist who coined the “Me Too” expression in 2006, and the phrase reappeared in 2017 when actress Alyssa Milano used it on Twitter. The #MeToo movement has been a driving factor in the heightened focus on sexual harassment cases. According to the Washington Post, similar to the celebrity driven #MeToo movement, cases filed with the EEOC saw an increase in sexual harassment cases filed by employees from small businesses — mom-and-pop and everyday companies. The #MeToo movement has increased society’s awareness of the problem and also made it more acceptable for victimized employees to...

Have You Been Accused of Sexual Harassment in the Workplace?

Growing Concerns About Sexual Harassment in Employment Environments New York NBC News recently reported that more than $5 million has gone into settling lawsuits brought against 70 New York employees accused of sexual harassment or gender discrimination. In addition, half of the accused employees have been allowed to keep their jobs. A Sexual Harassment Case Where Stephen Hans Represented the Defendant Attorney Stephen Hans appeared in an NY NBC video to give a statement regarding the case brought against his client by rehab counselor Jennifer Lastra. Both were counselors at the Manhattan Psychiatric Center. While she had various accusations of sexual harassment (she filed complaints with managers and the NYPD), there was no proof to substantiate her claim. Stephen Hans’ client, Paul Burke completely denied the charges and was willing to go to court to defend his side of the case. However, the case settled out of court, and the claimant received $25,000. In many government cases involving accusations of sexual harassment, internal investigations have found the accusations were without merit. To avoid expensive, protracted litigation where taxpayers would foot the bill, parties reached settlements instead of going to court. As Stephen pointed out, a settlement does not mean that the accused individual was guilty of wrongdoing. In many instances, a settlement is simply a wise decision to save court costs for both parties in a case. Sexual Harassment  — What Is the Other Side of the Coin? Over the past year with the #metoo movement, sexual harassment has taken center stage as an employment concern for employers and employees across the nation. While our legal system enables society...

Sexual Harassment Protest: Google Walkout

Thousands of Employees Worldwide Protest Google’s Handling of Sexual Harassment The Google Walkout on November 1, 2018 in protest of sexual harassment was a worldwide event. The largest gathering of protesters, numbering in the thousands, occurred in Silicon Valley, California where Google Headquarters is located. In addition, The New York Times reported that workers protested internationally in Singapore, Hyderabad, Berlin, Zurich, London, Chicago and Seattle, to name a few locations. New York also had a large number of protesters. An estimated 3,000 people gathered to protest in a city park. Since the #Metoo movement began a year ago, sexual harassment has topped the list in anti-discrimination movements. A number of states have passed stricter laws to prohibit sexual harassment, and New York has passed the most stringent sexual harassment training laws in the nation. What Was the Main Protest Focus in the Google Walkout? The New York Times published an article on Oct 25, 2018 about the resignation of the creator of Android software, Andy Rubin in 2014. At that time, he left Google with a $90 million exit package and no public disclosure of sexual misconduct. Google Chief Executive Sundar Pichai and Larry Page, co-founder of Google and the chief executive of the parent company, Alphabet issued apologies. According to a Wall Street Journal article on the walkout, Pichai stated that Google no longer makes payouts to employees who are dismissed due to sexual harassment. He also stated, “Moments like this show we didn’t always get it right. We are listening to employees, which is why today is important.” Another point of contention among the protesters was Google’s...