How to File a Sexual Harassment Complaint in New York

Sexual harassment is conduct, which includes inappropriate sexual remarks or acts, such as advances, that are directed at a worker because of their gender under New York employment laws. For conduct to constitute sexual harassment, the individual at whom the conduct is directed must find the behavior unwelcome.

Conduct does not have to be explicitly sexual in nature to be considered sexual harassment. It is also a form of employment discrimination. In a workplace context, sexual harassment must interfere with the victim’s ability to perform their job duties.

Sexual harassment may also occur if the unwelcome conduct creates a work environment that is offensive, intimidating, or hostile. An example of workplace sexual harassment is when promotions are offered contingent upon the worker providing sexual favors or submitting to sexual requests.

Sexual harassment can also happen when a worker does not submit to a request for sexual conduct becomes the basis for a negative personnel decision, which may include demotion or termination of employment. Common examples of specific conduct that may be considered sexual harassment can include, but are not limited to:

• Unwanted gestures
• Unwanted touching
• Jokes
• Innuendo
• Insulting or degrading references based on gender

When an individual believes they may have been a victim of sexual harassment in their workplace, they should be familiar with the process for filing a complaint.

Notify an employer as soon as possible

It is important for the worker to notify their employer as soon as possible about the conduct. This will allow the employer to conduct an investigation of the conduct and alleged sexual harassment.

Next steps for workers to take

If a worker has been a victim of sexual harassment in their workplace, there are steps they should take, including:

• Write down all the details they can about any incidents, including:
  • The offensive behavior
  • The date and time
  • Possible witnesses
• Keep any written proof of all harassment incidents as potential evidence, including, but not limited to:
  • Emails
  • Text messages
  • Letters
• Report all sexual harassment incidents to the human resources (HR) department or the agency that is designated to take complaints
• As the HR department to document the harassing conduct in the offender’s personnel file

This documentation is very important, as it can be used to support the individual’s harassment complaint.

Cooperate with the employer’s investigation

Once a worker has filed a complaint, their employer should conduct an investigation of the issue. This includes interviewing the victim, the alleged harasser, and any potential witnesses to the conduct.

File a sexual harassment lawsuit

If the attempt at resolution through the employer does not resolve the issue, an individual may be able to file a sexual harassment lawsuit in New York. If a worker is considering filing a lawsuit, they have already filed a lawsuit, or they are having issues related to their lawsuit, they should consult with a New York attorney.

How Do I Know if Am I Victim of Sexual Harassment in the Workplace?

It is important for workers to be aware that there is not a specific definition of sexual harassment conduct versus conduct that does not constitute sexual harassment. Factors that will be reviewed to differentiate the types of conduct may include:

• The conduct makes the victim feel intimidated or threatened
• The conduct is not desired by the victim
• The offending conduct is affecting the worker’s ability to complete their job duties, which may include:
  • Their job performance is going down
  • They need to come in late or leave early in order to avoid their harasser
  • They need to seek medical attention
  • They suffer physically
  • They decline advancement opportunities
  • Their work performance declines so severely that it results in their termination or demotion
• The behavior is severe or high in intensity
• The conduct pervades the workplace, meaning it is pervasive
  • Pervasive conduct is conduct that continues even after the victim complains, either to their harasser directly or to human resources
  • It is important to be aware that the conduct may also occur during off hours

None of these factors alone will provide that sexual harassment is occurring. Generally, the more frequent, severe, pervasive, and unwelcome the conduct, the more likely that the court will determine that the conduct constituted sexual harassment.

Whether an individual is the victim or alleged harasser, they can consult with an attorney, called a workplace sexual harassment lawyer. A lawyer can help determine if someone has been a victim of sexual harassment and take steps to remedy the issues or help an alleged harasser defend themselves against accusations.

What Are the Different Kinds of Sexual Harassment Claims?

There are currently different types of sexual harassment claims that an individual may be able to file.

Quid pro quo

Quid pro quo means, “something for something.” This form of sexual harassment arises when someone in a position of power, such as a supervisor, asks for or demands sexual favors in exchange for pay raises, promotions, or other job benefits.

In order to be quid pro quo harassment, the supervisor must indicate that, if the worker does not submit to the request, they will face negative job consequences. It is important to note that the worker does not have to deny or accept the request, the demand for the favor itself is enough to be quid pro quo harassment.

Hostile work environment harassment

With hostile work environment harassment, the worker will need to demonstrate that their work environment was hostile due to the harassment. The factors that a court will review when determining if hostile work environment sexual harassment occurred include:

• The severity of the harassing conduct
• If the harassment humiliated the victim
• If the harassment physically threatened the victim
• The frequency of the harassment
• If the harassment unreasonably interfered with the worker’s ability to perform their work

To constitute hostile work environment sexual harassment, the worker has to find the environment to be hostile and demonstrate that an objectively reasonable individual would come to the same conclusion. In other words, it is not enough just for the worker to feel that the workplace is hostile, a neutral objective person should also reach the same conclusion.

Can I Sue My Employer if I’m a Victim of Sexual Harassment in the Workplace?

In the State of New York, a worker who was a victim of sexual harassment will have to file a complaint with the Equal Employment Opportunity Commission (EEOC) before they can file a lawsuit against their employer.

The EEOC will then investigate the worker’s claims and may file a lawsuit on their behalf, although it is not always done. Once the EEOC completes their investigation process, if they do not file a lawsuit, they will issue a Notice of Right-to-Sue letter.

Once the individual gets their letter, they will have 90 days to file a sexual harassment lawsuit. If they do not do so within this time frame, their claim may be barred.

In the State of New York, residents can also file a claim with the New York State Division of Human Rights (DHR). This agency has procedures for investigating sexual harassment within the state.

Do I Need a Lawyer to File a Sexual Harassment Claim?

If you believe you are a victim of sexual harassment in your New York workplace, it is important to consult with a sexual harassment lawyer in New York. Your lawyer will give you advice and help you through the complaint process with the proper agency and represent you in court if you need to file a lawsuit.

You can use LegalMatch’s no cost attorney matching service to find a New York lawyer who can help you, whether you are a victim or an accused harasser. It will only take you about 15 minutes to submit your claim online and, in around 24 hours, you will get messages from New York sexual harassment lawyers who can help.