Working Together

The federal law known as Title VII, along with similar state laws, prohibits discrimination in employment on the basis of sex. Discrimination on the basis of sex can include harassment of an employee (either female or male employee, although the evidence is that sexual harassment of men is less common) by subjecting her or him to a  workplace environment made hostile, intimidating or offensive through unwelcome sexual advances or conduct of a sexual nature.

However, the federal courts have long recognized that Title VII is not “a general civility code for the American workplace,” in the words of the U.S. Supreme Court (Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 1998).  The Court said that Title VII does not bar all words that have sexual content or connotations.  As the Court stated in another case, (Harris v. Forklift Systems, Inc., 510 U.S. 17, 21,1993), “[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview.”

Thus, federal courts have looked for unwelcome conduct which is so severe and pervasive that it alters the conditions of employment.  It is the altering of the conditions of employment to something permeated with hostility and intimidation, to which the other sex is not subjected, that makes the conduct illegal.  The U.S. Supreme Court made it clear that Title VII would not prohibit simple teasing, offhand comments, or an isolated incident of offensive conduct that is not in itself extremely serious.  As the Court observed, there is a range of behaviors in the way that men and women interact with each other

The Connecticut Supreme Court, along with the courts of other states, has adopted Title VII’s standard of conduct –i.e., conduct that is sufficiently severe or pervasive to alter the conditions of a victim’s employment – as the governing standard for discrimination under Connecticut’s Fair Employment Practices Act. (At this point it should be noted that this is the standard for imposing legal liability in a discrimination complaint or lawsuit; employers can themselves require a standard of respectful behavior in the workplace that does not tolerate offensive conduct at any level.)  Our neighboring State of New York is one of the states that has used the severe-or-pervasive test in enforcing the New York Human Rights Law.

But this year New York amended the Human Rights Law to eliminate the severe-or-pervasive test.  In an amendment enacted on August 12, 2019, and effective 60 days after enactment, harassment on the basis of sex will be an unlawful discriminatory practice “regardless of whether the harassment would be considered severe or pervasive under precedent applied to harassment claims.” S. 6577/A. 88421.

So what does this mean? Does a simple teasing remark, an offhand sexual comment, or a single isolated incident, however mild, now constitute sex harassment for which an employer in New York State may be liable? What about an employee asking a co-worker for a date, being turned down, and asking again? Grasping a coworker’s  hand and telling her she looked “really hot,” vulgar remarks made to a group, displaying a revealing garment, giving lace underwear as a gag gift at a Christmas party, and displaying a photograph of a half-naked woman on an office wall, are some examples of obnoxious conduct which courts have nevertheless held not to be sufficiently severe or pervasive to constitute illegal harassment, but which now may be harassment in New York.

Other limits on liability presumably still apply. Conduct must be such that a reasonable person would find it offensive, and in order for the employer to be liable, it must know or have reason to know of harassment by co-workers.  (Not so for harassment by supervisors; in such cases, even under the severe-or-pervasive test the employer may be liable whether or not it knew or had reason to know of the conduct.)  But  any New York employer who wants to avoid being a test case for the limits of the new law should be seriously considering adopting and enforcing a workplace civility code, to ensure that tasteless attempts at humor and offhand remarks do not result in liability.