People sometimes hold a view of sexual harassment that is too narrow. They see the 1990s motion picture Disclosure, where a more powerful worker makes a sexual advance on a less powerful one and, when rejected, works to damage the latter’s career. That is one variety of sexual harassment, but it is not the only one. Indeed, as a recent case from here in New York City reminds us, sexual attraction or desire does not have to be a part of the equation at all. If you believe you were the target of sexual harassment at work, talk to a knowledgeable New York City sexual harassment lawyer as soon as possible. They can go over your options with you and help you pursue justice for the misconduct you endured.
In that recent case, J.F., a mechanic, worked for the New York City Department of Sanitation. In 2018, the mechanic began experiencing problems with a coworker, O.H. On multiple occasions, O.H. allegedly thrust his genital/pelvic area into J.F.’s rear while the latter was bent over working. The mechanic told the other man not to touch him, but the conduct continued happening, according to the mechanic’s lawsuit. In one situation, the mechanic awoke from a break-time nap to find the other man’s hand on his arm, caressing down to his hand.”
The mechanic sued for violations of federal (Title VII), state (New York State Human Rights Law), and city (New York City Human Rights Law) statutes. The city moved for summary judgment, but the court concluded that the mechanic’s NYCHRL claim should proceed. The mechanic’s success is an important reminder that you, as a victim of sexual harassment, do not necessarily have to prove that your harasser harbored a sexual desire for you to have a viable case under city law.
Same-Sex Harassment
Under federal law, you have several paths to success where you and your harasser were of the same sex. The U.S. Supreme Court in 1998 laid out three possible avenues for proving same-sex harassment under federal law. The key is to persuade the court that the harassment you endured was, in fact, because of sex. The options include:
- Providing “credible evidence that the harasser was homosexual.”
- Demonstrating that the harasser was “motivated by general hostility to the presence of women in the workplace.”
- Producing “direct, comparative evidence about how the alleged harasser treated members of both sexes [differently] in a mixed-sex workplace.”
The NYCHRL makes it very clear that all New York City workers are “entitled to an environment free from sexual harassment. That includes harassment carried out by individuals of the opposite sex... and the same sex.
With a NYCHRL claim, your evidentiary obligations are not as high as they are under federal law. You merely must establish that you were treated less well than individuals outside your protected class and that the treatment occurred because of your protected trait. In the past, the Second Circuit Court of Appeals found that allegations that a male worker paid “unwanted sexual attention” to a female subordinate, including propositioning her twice, were sufficient to maintain the woman’s case. So were the allegations of a woman who alleged that a female superior touched her breasts on multiple occasions.
Both of those involved were settings where the harasser was making sexual overtures (one heterosexual, one homosexual). Proof of the harasser’s sexual orientation is not mandatory for success. For example, persuasive evidence that “suggests sexual desire” can be enough in a same-sex case, even if you provide no proof that your harasser was, in fact, gay or lesbian.
Romantic Interest is Not a Prerequisite
Additionally, there does not need to be any sexual desire for there to be sexual harassment; there only has to be treatment based on sex that is identifiably worse than what people outside your gender class experience.
For example, in the mechanic’s case, he alleged that O.H. engaged in the pelvic grinding gag with multiple men in the shop. O.H. did not, however, grind upon the one female employee in the shop, according to the lawsuit. Based on this evidence, the mechanic had a viable claim under two possible theories: one that O.H.’s harassment “was motivated by sexual desire” and another that, regardless of sexual desire or a lack thereof, the mechanic had established inferior treatment that occurred because of sex.
Many times, sexual harassment occurs because a harasser desires the victim sexually. That, however, is not the only sexual harassment theory upon which you can win a case in New York. For reliable answers to your questions, as well as sound advice and effective litigation strategies, trust the experienced New York City sexual harassment attorneys at Phillips & Associates PLLC, who have helped sexual harassment survivors across the five boroughs achieve justice. To learn more, contact us online or call (866) 229-9441 to schedule a free and confidential consultation today.