Sexual Harassment

Taking Center Stage: The Workplace Rights of Trans Employees

In recent years, transgender people and their legal rights have finally begun to take their rightful place in the public consciousness after being vilified, ignored, and erased for far too long. Unlike traditional gender- or race-based prejudice, many Americans still feel comfortable holding consciously transphobic perspectives. Just yesterday, for example, a lawyer representing a transgender man in his employment discrimination suit against the U.S. Department of Veterans Affairs called for a Texas federal judge to recuse himself on the basis of multiple comments made during a case management conference that allegedly demonstrated bias against trans folks. The prevalence of employment discrimination and harassment against trans people is shocking. Among respondents to the National Center for Transgender Equality and the National Gay and Lesbian Task Force's 2009 National Transgender Discrimination Survey, 13% were unemployed, nearly double the national average at the time of the survey (the statistic was even more acute for respondents who were Black (26%), Latino (18%) and Multiracial (17%)). 47% of survey respondents had experienced an adverse job action (i.e. did not get a job, were denied a promotion, or were fired) because they were trans. 26% had specifically lost their job due to their gender identity or expression. Finally, a full 97% of respondents had experienced discriminatory harassment on the job. The bias underlying these numbers is a function of ignorance, and only through widespread advocacy efforts on behalf of transgender rights can we effectively combat it.

Luckily, in the context of employment law, attorneys have some surprisingly powerful tools at our disposal. Following the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which identified sex stereotyping as a form of sex discrimination, many courts have recognized that when trans employees experience discrimination based on an employer’s perception that they do not comport with stereotyped notions of what it means to be a man or a woman, they may bring sex discrimination claims under Title VII of the Civil Rights Act of 1964 in response.

For example, in Smith v. City of Salem, the court found that the plaintiff could bring a Title VII sex stereotyping claim when, after announcing she would be transitioning, she faced harassment from co-workers because they felt her “appearance and mannerisms were not ‘masculine enough.’” 378 F.3d 566, 568 (6th Cir. 2004). Following this rationale, federal courts around the country have recognized that trans people can bring viable sex discrimination claims under Title VII or other federal statutes barring sex discrimination. See, e.g.Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-CV-0375E(SC), 2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003). In addition to the sex stereotyping theory recognized in Smith, some courts have also recognized that discrimination based on a person’s transgender status is per se sex discrimination, as the discrimination stems from the trans person’s change of sex. See, e.g., Fabian v. Hosp. of Cent. Connecticut, No. 3:12-CV-1154 (SRU), 2016 WL 1089178, at *12 (D. Conn. Mar. 18, 2016).

New York State and City law also provide important tools in vindicating the rights of trans employees.

The New York State Division of Human Rights enacted regulations effective in January of 2016 interpreting the New York State Human Rights Law ("NYSHRL") to prohibit discrimination on the basis of gender identity and transgender status. See 9 N.Y.C.R.R. § 466.13(c). These new regulations also establish that harassment based on gender identity or transgender status is sexual harassment under the NYSHRL, 9 N.Y.C.R.R. § 466.13(c)(3), that the definition of “disability” under the NYSHRL includes gender dysphoria, a psychological condition characterized by distress because an individual’s gender at birth is contrary to the one with which they identify, that an employer may not deny a reasonable workplace accommodation to an employee with gender dysphoria, 9 N.Y.C.R.R. § 466.13(d)(4), and that harassment on the basis of gender dysphoria is harassment on the basis of disability, 9 N.Y.C.R.R. § 466.13(d)(5).

On the city side, the Transgender Rights Act, enacted in 2002, amended the New York City Human Rights Law ("NYCHRL") to prohibit discrimination on the basis of gender identity, gender expression, and transgender status. See N.Y.C. Local Law No. 3 (2002). In the New York City Human Rights Commission's 2015 enforcement guidance on trans discrimination, the Commission clarified that gender identity-based discrimination under the NYCHRL extends beyond traditional notions of discrimination, harassment, and retaliation to include instructions for employers on the use of employee pronouns and names, dress codes, and how to deal appropriately with requests for accommodation.

The strength and effectiveness of these protections only grows the more trans employees and their attorneys pursue the vindication of trans rights in court. As such, Beranbaum Menken is committed to being part of this effort by providing compassionate, effective, trans-literate representation to trans employees facing workplace discrimination, retaliation, and harassment.

Unpaid intern not protected from sexual harassment - but was she really an employee?

In Wang v. Phoenix Satellite Television US, Judge Castel in the Southern District of New York held that an unpaid intern has no protection from sexual harassment under the New York City Human Rights Law (NYCHRL). The plaintiff in that case was a masters’ degree student at Syracuse University who was hired as an intern for Phoenix, a company producing Chinese language news. She alleged that her supervisor sexually harassed her and denied her a permanent job when she refused his sexual advances. Judge Castel held that Ms. Wang could assert her claim relating to Phoenix’s failure to hire her, but dismissed her claim for sexual harassment, holding that because Ms. Wang was not being paid, she was not an employee, and therefore not protected by the NYCHRL.The Human Rights Law does not define “employee,” and is silent on whether it includes unpaid interns. However, the court’s decision does not address whether the plaintiff should have been paid, and if so, whether that would make her an “employee” under the NYCHRL. Ms. Wang didn’t argue that she was, and did not bring a minimum wage or overtime claim. But the facts of the case may have supported such a claim. According to Ms. Wang’s complaint, her duties included assisting the reporters with shooting news footage, drafting scripts, and editing video footage. She also scripted and reported her own stories on-camera. From this description, it seems that Phoenix was violating the Fair Labor Standards Act and the New York Labor Law by not paying Ms. Wang for her work. For an internship program to be legal, the Department of Labor sets forth a six factor test, each of which must be met: 1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

http://www.dol.gov/whd/regs/compliance/whdfs71.pdf . If Ms. Wang was actually performing the duties of a reporter, the internship would not pass factors 3 and 4. Presumably, if Ms. Wang didn’t script and report on her stories, a regular employee would have. Interns are not supposed to be an unpaid replacement for another employee, and an internship is not to be an unpaid, months-long trial employment. The persistence of these arrangements both unjustly enriches employers, and forecloses entire fields of employment from people who cannot afford to work for free. Ms. Wang should be entitled to be free from sexual harassment – she should also be paid for her work.

Supreme Court narrows who is a "supervisor" under Title VII

Few things in employment law are more convoluted than the rules the Supreme Court has made for holding employers responsible for sexual harassment at the workplace. Those rules anticipate three possible situations: 1. The harassment is done by a supervisor, and results in a "tangible employment action," such as getting demoted, fired, suspended, or losing salary. Think of the boss firing his assistant for refusing to go out with him. When this happens, the employer is automatically liable for the harassment.

2. The harassment is done by a supervisor, but there is no tangible employment action. Think of the boss hanging pornography at his desk and constantly making unwanted sexual advances on his assistant. When this happens, the employer is liable for the harassment, but can get out of trouble if it can prove that a) it took reasonable care to prevent the harassment, and to correct it if it did occur, and b) the victim unreasonably failed to take advantage of the procedures available to correct the harassment. So if a supervisor harasses a victim, without a tangible employment action, and there weren't effective workplace procedures in place, the employer is liable.

3. The harassment is done by a co-worker. Here, the employer is liable only if the victim can prove the employer was negligent in controlling the workplace. Think of the assistant being harassed daily by a salesperson, with everyone in the office, including the boss, aware of it, but the employer does nothing - the employer is probably liable. But if the employer had no reason to believe that the harassment would happen, and took steps to stop it as soon as it learned the harassment happened, the victim is going to have a hard time winning that case.

So, victims of sexual harassment have an easier time of it if they can show their harasser is a supervisor. Of course, that means the Supreme Court wants to make it harder to show someone is a supervisor. In Vance v. Ball State, decided on June 24th, Justice Alito's decision held that to be a supervisor for Title VII purposes, that individual must have the power to take a tangible employment action against the victim. This is contrary to the rule put forth by the Equal Employment Opportunity Commission (EEOC), which provided someone could be a supervisor if they controlled the day to day events in the victim's workplace. The Vance decision also overturns the longtime rule in the Second Circuit, which similar to the EEOC's rule, defined a supervisor as someone who had the authority to direct the victims daily activities. Mack v. Otis Elevator, 326 f.3d 116 92d Cir. 2003). Now, to be considered a supervisor, the harasser must have the authority to hire, fire, promote (or fail to promote), reassign with different responsibilities, or change salary or benefits.

What remains to be seen is how courts, under this new rule, will react to employers who try to artificially limit the number of supervisors by requiring all tangible employment decisions to be approved by a few, senior managers, or even a single owner for small employers. The Vance decision addresses this briefly, and implies that if the real authority lies with the lower level employee who recommends tangible employment actions, with the more senior employee not truly exercising independent judgment over tangible employment actions, the lower level employee will be considered a supervisor under Title VII. But time will tell how much input a more senior manager needs to have before his subordinate is no longer considered a supervisor.

What is clear from Vance is that a harasser with the ability to make a victims workday unpleasant - as in a famous case where the harasser told his victim, "go out with me or you'll be cleaning toilets for a year," will only result in employer liability under Title VII if the employer is negligent in some way.

There is good news, however, for employees in New York City. The New York City Human Rights Law (HRL) makes employers automatically liable for harassment caused by an employee who "exercised managerial or supervisory responsibility." NYC Administrative Code 8-107(13)(b)(1). Prior to Vance, the only New York State court to consider the question adopted the less restrictive EEOC and Second Circuit definitions of supervisor; see O'Niel v. Roman Catholic Diocese of Brooklyn, 927 N.Y.S.2d 818 (N.Y. Sup. Ct. April 27, 2011). This reasoning should survive the Vance decision, since the HRL, by its own terms, is to be interpreted broadly and independently of Federal courts' interpretation of Title VII. So, in New York City at least, to be a supervisor one need only have day to day authority over an employee, and need not have the power to hire, fire, demote, etc.

Exciting Developments for Women’s Rights in New York

With civil rights legislation generally stalled in Congress, there is a very real chance for the expansion of women’s rights in New York State. Governor Cuomo recently introduced the Women's Equality Act, his ten-point program to provide women greater protection in and outside the workplaces. Five of the Women's Equality Act’s ten points relate directly to women’s equality on the job. Those five points are:

• Amending the New York State Equal Pay Act to narrow the defenses that employers can raise for paying women lower wages than men who do similar work; to increase liquidated damages (a kind of punitive damages) to three times the actual wage loss; and to protect employees against retaliation for sharing wage information with coworkers.

• Amending the State Human Rights Law to protect victims of sex harassment in establishments with fewer than four employees. Right now, an employer must have at least four employees for the State anti-discrimination and anti-harassment laws to apply.

• Attorney's fees will be available under the State Human Rights Law in sex discrimination cases. This part of the law actually does not go far enough, and through the New York chapter of the National Employment Lawyers Assn., Beranbaum Menken LLP is working to get that part of the bill changed, so that all victims of discrimination who prevail in litigation, not just women, are entitled to attorney’s fees. Without the right to attorney’s fees, lawyers will be reluctant to take cases on behalf of low and middle income workers.

• Amending the State Human Rights Law to cover discrimination based on familial status – meaning an employer would not be able to discriminate against employees because they are single, married, have or do not have children.

• Amending the State Human Rights Law to require that employers offer reasonable accommodation for pregnancy related conditions.

The Women's Equality Act is very significant legislation that promises to fill some important gaps in New York State’s employment laws as they apply to women. The current Legislative session ends on the 17th of June. If you want to help get this legislation passed, the best thing you can do is to call Senator Dean Skelos (Rep. leader) 518-455-3171 and Senator Jeff Klein (Dem. Leader) 518-455-3595. You will either get the voice mail or phone answerer. All you need to say is that you are a New Yorker; you support the Women's Equality Act and all you ask of the Senator is that he allows the bill to go to the floor for a democratic vote. It is a matter of process. Also, you should call or email your own Assembly person and senator, tell her/him that you are a constituent and urge their support of the bill.