I slept with my boss. Now he's harassing me. What can I do?

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Marjorie Mesidor contact

Contact Marjorie Mesidor

New York, NY

Practice Areas: Employment, Overtime Pay, Wrongful Termination

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 During the holiday season it is not unlikely that you will be invited to holiday parties and/or you will exchange gifts with your co-workers and your boss. It is not uncommon that during the festivities, that often involve alcohol and other merriment that your professional guard may come down, leaving you in a compromising position. This misstep can often lead to unwanted romantic advances, unsavory comment and/or requests of a sexual nature.

Even if the relationship was once consensual, if you inform your superior that you no longer want engage in a relationship of a romantic nature, he or she must cease from further advances. If he or she continues, this is a possible violation of federal, New York State and New York City anti- sexual harassment laws. The key: the harasser's conduct must be unwelcome.

Sexual harassment is prohibited by federal law, specifically by Title VII of the Civil Rights Act of 1964 (42 U.S.C. ' 2000e). Sexual harassment also is prohibited by New York State law under the New York State Human Rights Law, Executive Law ' 296. In addition, sexual harassment that occurs in New York City is prohibited by the Administrative Code of the City of New York 8-101.

Sexual Harassment Under Federal Law

It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. In addition, the victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

Although federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

Sexual Harassment Under New York State Law

The New York courts have adopted the standards that define sexual harassment under Title VII to apply to actions brought under New York state human rights law.

The New York courts have held that the test for a sexual harassment claim is whether the sexual conduct was unwelcome by you. The fact that you were forced to engage in a sexual activity of course would be considered unwelcome, but there are other instances when you have participated willingly, for perhaps fear of reprisal, that nevertheless will be considered unwelcome and permit you to seek money damages.

Domestic workers. Effective November 29, 2010, the New York Human Rights Law protects domestic workers from unlawful workplace harassment (NY Exec. Law Sec. 296-b). The law prohibits all employers, regardless of size, from sexually harassing domestic workers and from creating a hostile work environment by harassing domestic workers on the basis of gender, race, religion, or national origin.

Sexual Harassment Under New York City Law

New York City has its own sexual harassment and anti-discrimination law. Generally speaking, NYC law is stronger than the federal and New York State employee rights and sexual harassment laws. Under 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 the New York City Administrative Code, 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 gives New York City employees a better chance of being successful in proving their claims.

In addition, managers and supervisors who participate in discriminatory behavior or knowingly allow discriminatory conduct by employees have no defenses available to them under the City Code, they are strictly liable.

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