New York State
Overview
Please review the information below. If you work in New York City, please also review the information about the NYC Human Rights Law here. When you have completed your review, please return to the workplace harassment prevention course tab.
Harassment and discrimination based on a protected characteristic are prohibited under both federal and state law. The federal government and most state governments have agencies that help employers and employees understand these legal requirements and ensure compliance with the laws.
Protected Characteristics
Harassment or discrimination based on any protected characteristic set forth below is prohibited in New York.
Federal
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race
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color
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national origin
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sex (including pregnancy, sexual orientation and gender identity)
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gender expression
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disability
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genetic information (including family medical history)
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religion
- age (40 and older)
- military or other uniformed service
New York
race (including traits historically associated with race, such as hair texture and protective hairstyles)
color
national origin (including ancestry)
sex (including pregnancy, childbirth, and related medical conditions and sexual or reproductive health decisions)
gender identity or expression (including transgender, actual or perceived gender non-conformity, or transitioning from one’s gender assigned at birth to one’s gender identity)
sexual orientation
age (18 and over)
creed
religion
disability
familial status
genetic information (including family medical history and predisposing genetic characteristics)
marital status
military or other uniformed services or veteran status
arrest record or conviction record
- citizenship and immigration status
Important Notes
In addition to the general protected characteristics listed above, some federal, state, and/or local laws also prohibit employment discrimination on the basis of other protected statuses in certain contexts, such as:
citizenship status or work authorization status,
emergency volunteer status,
family relationship with a co-worker, and/or
status based on information contained in criminal, background, or credit reports, or being subject to wage garnishments.
For example, discrimination based on alienage or citizenship, credit history, salary history, or employment status is unlawful under New York City law.
Likewise, some federal, state, and/or local laws prohibit discrimination, harassment, and/or retaliation for exercising certain legal rights such as:
participating in collective bargaining or union activities,
serving as a whistleblower pursuant to whistleblower laws,
filing a worker’s compensation or unemployment claim,
taking protected time off or protected leave,
engaging in certain off-duty activities.
Finally, under federal law and some state and/or local laws, employers may not limit or prohibit employees from using any languages in the workplace unless there is a business necessity for the restriction.
Note also that some federal, state, and/or local laws provide additional, separate standards and remedies for certain prohibited conduct, such as laws addressing equal pay without regard to sex or other protected category or specifically addressing sexual harassment prevention measures.
Applicable Laws
Federal
The primary federal laws that prohibit employment discrimination include Title VII of the 1964 Civil Rights Act, The Age Discrimination in Employment Act, The Americans With Disabilities Act, The Equal Pay Act, The Uniformed Services and Employment and Reemployment Act, The Immigration and Nationality Act, and The Genetic Information Nondiscrimination Act.
The U.S. Supreme Court held that Title VII protects individuals from employment discrimination on the basis of sexual orientation and gender identity or expression. Bostock v. Clayton County, Georgia, No. 17-1618 (U.S. June 15, 2020).
New York
The primary state law that prohibits employment discrimination is The New York State Human Rights Law.
Harassment is Prohibited
What is Harassment?
Harassment is a form of discrimination that consists of words, signs, jokes, pranks, intimidation, physical actions, or violence directed at an employee due to any protected characteristic.
Harassment includes offensive behavior based on stereotypes about a protected class and behavior intended to cause discomfort or humiliation because of a protected characteristic. Harassment also includes any expression of contempt or hatred for the group to which the victim belongs based on a protected characteristic.
Sexual Harassment
Sexual harassment is a form of gender-based discrimination that is unlawful under federal, state, and (where applicable) local law. Sexual harassment includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity, and the status of being transgender. Sexual harassment is not limited to sexual contact, touching, or expressions of a sexually suggestive nature. Sexual harassment includes all forms of gender discrimination including gender role stereotyping and treating employees differently because of their gender.
Understanding gender diversity is essential to recognizing sexual harassment because discrimination based on sex stereotypes, gender expression and perceived identity are all forms of sexual harassment. The gender spectrum is nuanced, but the three most common ways people identify are cisgender, transgender, and non-binary. A cisgender person is someone whose gender aligns with the sex they were assigned at birth. Generally, this gender will align with the binary of male or female. A transgender person is someone whose gender is different than the sex they were assigned at birth. A non-binary person does not identify exclusively as a man or a woman. They might identify as both, somewhere in between, or completely outside the gender binary. Some may identify as transgender, but not all do. Respecting an individual’s gender identity is a necessary first step in establishing a safe workplace.
Sexual harassment is unlawful when it subjects an individual to inferior terms, conditions, or privileges of employment. Harassment does not need to be severe or pervasive to be illegal. It can be any harassing behavior that rises above petty slights or trivial inconveniences. Every instance of harassment is unique to those experiencing it, and there is no single boundary between petty slights and harassing behavior. However, the Human Rights Law specifies that whether harassing conduct is considered petty or trivial is to be viewed from the standpoint of a reasonable victim of discrimination with the same protected characteristics.
The intent of the behavior, for example, making a joke, does not neutralize a harassment claim. Not intending to harass is not a defense. The impact of the behavior on a person is what counts. Sexual harassment includes any unwelcome conduct which is either directed at an individual because of that individual’s gender identity or expression (perceived or actual), or is of a sexual nature when:
- The purpose or effect of this behavior unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment. The impacted person does not need to be the intended target of the sexual harassment;
- Employment depends implicitly or explicitly on accepting such unwelcome behavior; or
- Decisions regarding an individual’s employment are based on an individual’s acceptance to or rejection of such behavior. Such decisions can include what shifts and how many hours an employee might work, project assignments, as well as salary and promotion decisions.
There are two main types of sexual harassment:
- Behaviors that contribute to a hostile work environment include, but are not limited to, words, signs, jokes, pranks, intimidation, or physical violence which are of a sexual nature, or which are directed at an individual because of that individual’s sex, gender identity, or gender expression. Sexual harassment also consists of any unwanted verbal or physical advances, sexually explicit derogatory, or discriminatory statements which an employee finds offensive or objectionable, causes an employee discomfort or humiliation, or interferes with the employee’s job performance.
- Sexual harassment also 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. This is also called quid pro quo harassment.
Any employee or covered individual who feels harassed is encouraged to report the behavior so that any violation of your employer’s harassment prevention policy can be corrected promptly. Any harassing conduct, even a single incident, can be discrimination and is covered by your employer’s policy.
Examples of Sexual Harassment
The following describes some of the types of acts that may be unlawful sexual harassment and that are strictly prohibited. This list is just a sample of behaviors and should not be considered exhaustive. Any employee who believes they have experienced sexual harassment, even if it does not appear on this list, should feel encouraged to report it:
- Physical acts of a sexual nature, such as:
- Touching, pinching, patting, kissing, hugging, grabbing, brushing against another employee’s body, or poking another employee’s body; or
- Rape, sexual battery, molestation, or attempts to commit these assaults, which may be considered criminal conduct outside the scope of this policy (please contact local law enforcement if you wish to pursue criminal charges).
- Unwanted sexual comments, advances, or propositions, such as:
- Requests for sexual favors accompanied by implied or overt threats concerning the target’s job performance evaluation, a promotion, or other job benefits;
- This can include sexual advances/pressure placed on a service industry employee by customers or clients, especially those industries where hospitality and tips are essential to the customer/employee relationship;
- This can include sexual advances/pressure placed on a service industry employee by customers or clients, especially those industries where hospitality and tips are essential to the customer/employee relationship;
- Subtle or obvious pressure for unwelcome sexual activities; or
- Repeated requests for dates or romantic gestures, including gift-giving.
- Sexually oriented gestures, noises, remarks or jokes, or questions and comments about a person’s sexuality, sexual experience, or romantic history which create a hostile work environment. This is not limited to interactions in person. Remarks made over virtual platforms and in messaging apps when employees are working remotely can create a similarly hostile work environment.
- Sex stereotyping, which occurs when someone’s conduct or personality traits are judged based on other people’s ideas or perceptions about how individuals of a particular sex should act or look:
- Remarks regarding an employee’s gender expression, such as wearing a garment typically associated with a different gender identity; or
- Asking employees to take on traditionally gendered roles, such as asking a woman to serve meeting refreshments when it is not part of, or appropriate to, her job duties.
- 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. This includes such sexual displays on workplace computers or cell phones and sharing such displays while in the workplace;
- This also extends to the virtual or remote workspace and can include having such materials visible in the background of one’s home during a virtual meeting.
Who Can be a Target of Sexual Harassment?
Sexual harassment can occur between any individuals, regardless of their sex or gender. Harassment does not have to be between members of the opposite sex or gender. New York Law protects employees and all covered individuals described earlier in the policy. Harassers can be anyone in the workplace. A supervisor, a supervisee, or a coworker can all be harassers. Anyone else in the workplace can also be harassers including an independent contractor, contract worker, vendor, client, customer, patient, constituent, or visitor.
Sexual harassment does not happen in a vacuum and discrimination experienced by an employee can be impacted by biases and identities beyond an individual’s gender. For example:
- Placing different demands or expectations on black women employees than white women employees can be both racial and gender discrimination;
- An individual’s immigration status may lead to perceptions of vulnerability and increased concerns around illegal retaliation for reporting sexual harassment; or
- Past experiences as a survivor of domestic or sexual violence may lead an individual to feel re-traumatized by someone’s behaviors in the workplace.
Individuals bring personal history with them to the workplace that might impact how they interact with certain behavior. It is especially important for all employees to be aware of how words or actions might impact someone with a different experience than their own in the interest of creating a safe and equitable workplace.
Where Can Sexual Harassment Occur?
Unlawful sexual harassment is not limited to the physical workplace itself. It can occur while employees are traveling for business or at employer or industry sponsored events or parties. Calls, texts, emails, and social media usage by employees or covered individuals can constitute unlawful workplace harassment, even if they occur away from the workplace premises, on personal devices, or during non-work hours.
Sexual harassment can occur when employees are working remotely from home as well. Any behaviors outlined above that leave an employee feeling uncomfortable, humiliated, or unable to meet their job requirements constitute harassment even if the employee or covered individual is at home when the harassment occurs. Harassment can happen on virtual meeting platforms, in messaging apps, and after working hours between personal cell phones.
Reporting Harassment to Your Employer
Reporting to Your Employer
Anyone who experiences, witnesses, or becomes aware of potential instances of sexual harassment should report it to a supervisor, manager, or other person designated by your employer to receive complaints (as outlined in your employer’s sexual harassment prevention policy) so the employer can take action. If you are not sure you want to pursue a complaint at the time of potential harassment, document the incident to ensure it stays fresh in your mind.
Important: Managers and supervisors must report any complaint that they receive or any harassment that they observe or become aware of.
When to Report
You should report any behavior you experience or know about that is inappropriate, as described in this training, without worrying about whether or not if it is unlawful harassment. Behavior does not need to violate the law to be a violation of the harassment policy.
Complaint Form
Your employer will provide you with a complaint form to report harassment and file complaints. If you believe that you have been subjected to sexual harassment, you are encouraged to complete the complaint form and submit it to the person(s) designated in your employer’s sexual harassment policy.
However, if you are more comfortable reporting verbally or in another manner, you may do so, and your claims will still be investigated.
Response
If you experience and/or report harassment, you should cooperate with your employer’s investigators so a full and fair investigation can be conducted and any necessary corrective action can be taken.
If you report harassment to a manager or supervisor and receive an inappropriate response, such as being told to “just ignore it,” you may take your complaint to the next level or file a complaint with an external agency.
Filing a Complaint with an External Agency
The EEOC
The EEOC enforces federal anti-discrimination laws, including Title VII of the 1964 federal Civil Rights Act, 42 U.S.C. § 2000e et seq. An individual can file a complaint with the EEOC anytime within 300 days from the most recent incident of harassment.
State Agencies
Employees in New York State may file complaints of sexual harassment with either or both of the agencies listed below:
New York State Division of Human Rights (DHR)
The New York State Human Rights Law (HRL), N.Y. Executive Law, art. 15, § 290 et seq., applies to all employers in New York State and protects employees and covered individuals, regardless of immigration status. A complaint alleging violation of the Human Rights Law may be filed either with the New York State Division of Human Rights (DHR) or in New York State Supreme Court.
Office of the New York State Attorney General, Civil Rights Bureau
The Civil Rights Bureau determines whether your experiences are evidence of a pattern, practice, or policy of sexual harassment affecting a significant number of people.
Local Protections
Many localities enforce laws protecting individuals from sexual harassment and discrimination. An individual should contact the county, city or town in which they live to find out if such a law exists.
Filing a Lawsuit in State or Federal Court
Depending on the law on which a complaint is based, an individual may also have the right to file a lawsuit against their employer in state or federal court. Although a federal Title VII claim may only be brought in court after a charge is first filed with the EEOC, the NY State law Human Rights Law does not require individuals to file a complaint with the State Division of Human Rights or any other agency before bringing an action under the law in court.
The scope of and procedure for filing complaints under local human rights laws may differ from those of the State Human Rights Law. For instance, sexual harassment complaints under the NY City Human Rights Law may only be brought against an employer with more than 4 employees.
Contact the Local Police Department
If the harassment involves unwanted physical touching, coerced physical confinement, or coerced sex acts, the conduct may constitute a crime. Contact your local police department.
The New York State Division of Human Rights Sexual Harassment Hotline
Call the DHR sexual harassment hotline at 1(800) HARASS3 for more information about filing a sexual harassment complaint. This hotline can also provide you with a referral to a volunteer attorney experienced in sexual harassment matters who can provide you with limited free assistance and counsel over the phone.
Remedies
An employee who has been sexually harassed in New York may be entitled to monetary remedies and an employer may be required to take certain actions to redress harassment, which can include the items below.
Monetary Remedies
Monetary remedies that may be available to harassment victims in New York include:
Back-pay for lost wages
Front pay (to compensate for lost wages in the future)
Compensatory damages (including compensation for pain and suffering)
Other out of pocket expenses, including in some cases legal fees, expert fees, and other costs
Punitive damages may be available under federal and New York state law
Employer Redress
Employer action to redress harassment may include, among other things:
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Hiring, reinstatement, or promotion
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Cease and desist orders
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Posting notices
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Employee training
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The expunging of disciplinary records
Retaliation is Prohibited
What is Retaliation?
Retaliation is any action taken to negatively alter the terms and conditions of employment (including, for example, a demotion, transfer, or negative work schedule change) against a person who engaged in a protected activity or to discourage an employee from engaging in such activities.
The negative action need not be job-related or occur in the workplace and may occur after the end of employment, such as an unwarranted negative reference.
Protected Activity
Any employee who has engaged in a protected activity is protected by Federal and New York State law from retaliation.
Protected activities with regard to harassment include:
making a complaint to a supervisor, manager, or another person designated by your employer to receive complaints about harassment
making a report of suspected harassment, even if you are not the recipient
filing a complaint related to sexual harassment with your employer, an anti-discrimination agency or commission, or a court or other judicial venue
opposing harassment or any form of discrimination
encouraging another employee to report sexual harassment or any form of discrimination
assisting another employee who is complaining of harassment
providing information during a workplace investigation of harassment
testifying in connection with a complaint of harassment filed with a government agency or in court
The information contained on this page is for informational purposes only.
It does not, and is not intended to, constitute legal advice.