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New York State Provisions on Preventing Discrimination and Harassment

Use this job aid as a reference guide on the New York State Human Rights Law.

A Guide to New York's Discrimination and Harassment Law

Protected Characteristics

The New York State Human Rights Law (NYSHRL) protects employees, applicants, and unpaid interns from discrimination and harassment based on their membership in a protected class. The NYSHRL also prohibits retaliation against an individual who has complained of discrimination or harassment, or who has otherwise engaged in protected activity. Discrimination against an individual who has a known relationship or association with a member or member of a protected category also is prohibited. Protected characteristics include

• Age (18 years of age or older)
• Race
• Creed
• Color
• National origin
• Actual or perceived sexual orientation
• Military status
• Sex, including pregnancy
• Disability
• Predisposing genetic characteristics
• Marital status
• Domestic violence victim status
• Religion
• Prior criminal conviction when the employer's use of the conviction information is in violation of N.Y. Correct. Law § 752
• Prior criminal arrest or prosecution that was terminated favorably for the individual
• Familial status
• Gender identity, gender dysphoria, and transgender status

Sexual Harassment

Sexual harassment is a form of sex discrimination. Every employee in the State of New York is entitled to a working environment free from sexual harassment. The provisions of the Human Rights Law generally apply to employers with four or more employees. However, with regard specifically to sexual harassment, the NYSHRL was amended in 2015 to apply to all employers, regardless of the number of employees.

Sexual harassment in the form of a "hostile environment" consists of words, signs, jokes, pranks, intimidation or physical violence that are of a sexual nature, or that are directed at an individual because of that individual's sex. Sexual harassment also consists of any unwanted verbal or physical advances, sexually explicit derogatory statements, or sexually discriminatory remarks made by someone in the workplace, which are offensive or objectionable to the recipient, which cause the recipient discomfort or humiliation, or which interfere with the recipient's job performance.

A type of sexual harassment known as "quid pro quo" harassment occurs when a person in authority tries to trade job benefits for sexual favors. This can include hiring, promotion, continued employment or any other terms conditions or privileges of employment. Only supervisors and managers are deemed to engage in this kind of harassment, because co-workers do not have the authority to grant or withhold benefits.

Sexual harassment can occur between males and females, or between persons of the same sex. Sexual harassment that occurs because the victim is transgender is also unlawful.

A single incident of inappropriate sexual behavior may be enough to rise to the level of sexual harassment, depending on the severity of such incident. The law requires that the behavior be severe or pervasive, so that one joke or comment may not be enough to be sexual harassment. However, the courts have held that a single incident could be considered sexual harassment, depending on the circumstances.

Sexual harassment includes unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, when

• Such conduct is made either explicitly or implicitly a term or condition of employment,
• Submission to or rejection of such conduct is used as the basis for employment decisions affecting an individual's employment; or
• Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive work environment, even if the complaining individual is not the intended target of the sexual harassment.

The following describes some of the types of acts that may be unlawful sexual harassment:

• Physical assaults of a sexual nature, such as
• • Rape, sexual battery, molestation, or attempts to commit these assaults.
  • Intentional or unintentional physical conduct which is sexual in nature, such as touching, pinching, patting, grabbing, brushing against another employee's body, or poking another employees' body.;
• Unwanted sexual advances, propositions or other sexual comments, such as
• • Requests for sexual favors accompanied by implied or overt threats concerning the victim's job performance evaluation, a promotion, or other job benefits or detriments
  • Subtle or obvious pressure for unwelcome sexual activities;
  • Sexually oriented gestures, noises, remarks, jokes or comments about a person's sexuality or sexual experience which are sufficiently severe or pervasive to create a hostile work environment.
• Sexual or discriminatory displays or publications anywhere in the workplace, such as displaying pictures, posters, calendars, graffiti, objects, promotional material, reading materials, or other materials that are sexually demeaning, or pornographic.

An employee may report sexual harassment to these agencies:

• U.S. Equal Employment Opportunity Commission (EEOC) 1-800-669-4000; 1-800-669-6820 (TTY); info@eeoc.gov
• • An individual may file a complaint with the EEOC anytime within 300 days from the alleged discrimination. The individual does not need to have an attorney to file.
  • A complaint must be filed with the EEOC before it may be filed in federal court.
  • If an individual files an administrative complaint with the New York State Division of Human Rights (DHR), DHR will automatically file the complaint with the EEOC to preserve the right to proceed in federal court.
• New York State Division of Human Rights 1-888-392-3644; http://www.dhr.ny.gov
• • Complaints may be filed with DHR any time within one year of the alleged discrimination. An employee does not need to have an attorney to file.
  • If an individual did not file at DHR, he or she may sue directly in state court under the Human Rights Law, within three years of the alleged discrimination.
  • An individual may not file with DHR if he or she already filed a Human Rights Law complaint in state court.

Retaliation

It is unlawful for any employer, or any agent or employee of the employer, to retaliate against an employee who has complained of sexual harassment. The NYSHRL protects any individual who has engaged in "protected activity." Protected activity occurs when a person has

• filed a formal written complaint of sexual harassment, either internally with management or human resources, or with any anti-discrimination agency,
• testified or assisted in a proceeding involving sexual harassment under the NYSHRL,
• opposed sexual harassment by making a verbal or informal complaint to management, or by simply informing a supervisor or manager of harassment,
• complained that another employee has been sexually harassed, or
• encouraged a fellow employee to report harassment.

(For employers with four or more employees, retaliation also applies to opposition to any other actions forbidden by the Human Rights Law.)

Even if the alleged harassment does not turn out to rise to the level of a violation of the NYSHRL, the individual is protected if he or she had a good faith belief that the practices were unlawful. However, the retaliation provision is not intended to protect persons making intentionally false charges of harassment.

Retaliation consists of an adverse action or actions taken against the employee by the employer. The action need not be job-related or occur in the workplace. Unlawful retaliation can be any action, more than trivial, that would have the effect of dissuading a reasonable worker from making or supporting a charge of harassment or any other practices forbidden by the Law.

Actionable retaliation by an employer can occur after the individual is no longer employed by that employer. This can include giving an unwarranted negative reference for a former employee. A negative employment action is not retaliatory merely because it occurs after the employee engaged in protected activity. Employees continue to be subject to all job requirements and disciplinary rules after having engaged in such activity. In order to make a claim of retaliation, the individual must be able to substantiate the claim that the adverse action was retaliatory.