What Are Some Examples of Sexual Harassment in the Workplace Under the Updated Rules in 2023?

1. Unwanted Touching
2. Inappropriate Comments or “Jokes”
3. Statements Linking Workplace Relationships and Careers
4. Being Fired, Reassigned, or Denied Opportunities After an Offensive Encounter

1. Unwanted Touching

One of the most common examples of workplace harassment that receives media coverage, including in movies and documentaries, is physical contact such as a pinch, pat, grab, or embrace. This kind of contact, if unwanted and offensive, can make the workplace unwelcoming and fearsome if it is serious enough. The federal and New York authorities therefore consider a physical advance in the workplace or a setting related to the workplace as potential evidence of sexual harassment.

In cases of workplace violence involving persons who are not U.S. citizens or permanent residents, there are forms of protected immigration status extended to victims of workplace violence. Such protection may involve access to public benefits, work authorization, lawful U.S. residence for up to four years, and similar rights for members of the former employee’s family.

2. Inappropriate Comments or “Jokes”

Sexual activity does not have to be physical to be evidence of harassment. Sexually suggestive or anti-women comments or “jokes” can be an insulting or harassing statement. If it gets in the way of the victim or other employees doing their work, or creates a severe issue of hostility on the job, such a comment or joke can lead to a sexual harassment lawsuit or settlement.

New York law requires employers to develop a plan to reduce or eliminate workplace harassment. The Department of Labor and Department of Human Rights worked on a model sexual harassment prevention policy, and released a poster that employers may use. The failure to use these tools or to train workers properly may be evidence of a culture of harassment at an organization.

3. Statements Linking Workplace Relationships and Careers

When a supervisor, business owner, or other person in authority implies or says that an employee will receive benefits or opportunities in exchange for being touched or entering into a relationship, this is a traditional form of sexual harassment. The trading of sexual contact for hiring, promotion, or protection from reassignment or firing can be sexual harassment, whether the person making the offer or suggestion is of the same gender as the victim, or a different gender. The two parties do not have to work in the same department or location, and one may not even be the boss or supervisor of the other. Sexual harassment can happen when the employer tolerates such offers or demands, or they create a workplace culture that is seriously offensive or unsafe.

4. Being Fired, Reassigned, or Denied Opportunities After an Offensive Encounter

Even a single incident of being reassigned or losing a benefit like a bonus or a promotion can be sexual harassment if it is punishment for not going along with a sexual proposition or request for an improper relationship. The incident has to have severe or repeated effects. While the incident does not have to be as severe as being fired or not being hired, it has to impact the conditions or benefits of a job.

An example of sexual harassment is a demand for a sexual or romantic relationship, with a threat (which can be in code language) to hurt or benefit an applicant’s hiring chances, or an employee’s evaluations, benefits, or promotions. It could also relate to protecting an employee from being fired or reassigned, whether alongside others or not. Demands for a relationship or sex, if they are made a qualification or path to employment, or if they change the benefits or type of employment, can interfere with an employee’s career and can bring about a hostile or fearful workplace.

Before stepping down from office, New York State Governor Andrew Cuomo signed a law with additional rights for women involving equal treatment. His office said that “perpetrators will be held accountable.” For example, the updated laws say that sexual harassment does not have to be “severe” to be illegal, anymore. The laws give employees who sign non-disclosure agreements the right to file a complaint of harassment or discrimination going forward. They also give employees two more years to file lawsuits for sexual harassment.

New York has also made clear that a person does not have to be a payroll employee to have rights against harassment and other discriminatory actions at their workplace. It has given rights to temporary employees, “gig” workers, independent contractors, subcontractors, vendors, repairpersons, outside cleaners, and other persons doing any other work relating to a contract with the employer.

Governor Kathy Hochul has also signed updates to workplace harassment and discrimination laws. These updates are about how bosses have to clearly state that sexual harassment is punishable misconduct in the workplace. Even supervisors or managers who do not commit the sexual harassment but who allow it to go on can be punished under the updated laws. Also, it is illegal for bosses or owners to punish employees who complain about sexual harassment or who testify in court.

It is important to know your rights when it comes to sexual harassment and retaliation for making complaints. A free consultation can help you understand your rights and take action to protect them, including by contacting human resources or the government.

How Do Workers Get Compensated for Being Harassed or Unsafe on the Job in 2023?

Harassment on the job can happen to anyone, and it is ultimately about coercion rather than gender or some other characteristic of the victim. Conduct or words intended to announce hate for the victim based on their background, or to make the victim afraid or embarrassed, may qualify as harassment.

Sexual harassment is the most familiar kind. But, under New York and federal law, harassment can be about a person’s gender identity, race, country of birth, color, disability, criminal history, or a few other characteristics.

Compensation discrimination can be one form of sexual harassment. A supervisor, owner, or even a co-worker may reduce a worker’s pay, bonuses, or other benefits for refusing to go along with demands for an inappropriate relationship, for objecting to offensive comments or practices, or for standing up for a co-worker who is being harassed. The same thing can happen to victims who are independent contractors, “gig” workers,” vendors, or other non-employees who are harassed and receive fewer contracts, a lower rate of compensation, or other compensation discrimination for not playing along.

In order to be compensated for unlawful harassment, there has to be a legal action against the employer.
One way of proceeding is to file a lawsuit under the New York State Human Rights Law and if applicable, the New York City Human Rights Law. While anyone can file such a lawsuit on their own, consulting with an attorney or law firm can help make sure that the necessary evidence is gathered and presented properly, and that the claims are phrased properly. The Civil Rights Act under federal law is another way to go, and it provides many of the types of compensation listed below, although it limits most damages to $300,000 per person (employers with 15-200 employees may have to pay $100,000 or less, and those with 201-500 employees $200,000 or less). A claim under this law requires first going to the Equal Employment Opportunity Commission, which has the power to ask for a worker’s job back or even to get the worker paid without going back to work in some cases where the worker and the supervisor or others have a broken relationship or there are no positions available. The Commission may take the employer to court itself or allow the employee to sue in court.

Workers who have been harassed or discriminated against may be entitled to one or more of several categories of compensation. These include:

Back pay
Front pay
Mental suffering damages
Reinstatement
Court orders
Extra damages
Punitive damages

Back pay. This is pay that was lost in the past due to the harassment leading to compensation discrimination, loss of promotion(s), termination, or the employee finding it impossible to keep showing up in a hostile workplace. Our laws have a strong policy against discrimination and harassment, so compensation for lost pay should be the default unless there is some special reason for a worker not to receive it. Compensation for back pay should include not just salary or wages but also expected raises and fringe benefits, and interest due for delay in the pay and benefits.

Front pay. Sometimes courts order that a former employee continue to be paid for the lost months and years of his or her career that were lost to harassment or discrimination. Courts use their good judgment to decide whether or not an employee can return to a discriminatory employer.

Mental suffering damages. Depression, loss of interest in normal activities, difficulty concentrating or performing well at tasks, and even thoughts of suicide can happen during or after harassment at work. The law calls this mental anguish or emotional distress and makes it part of compensation for harassment in a lawsuit in appropriate cases. Such distress can be valued in the hundreds of thousands of U.S. dollars due to its impact on the enjoyment life and its infliction of pain on a victim.

Reinstatement. It is also within the power of the courts, and sometimes within that of the Equal Employment Opportunity Commission or other out-of-court hearing officers, to order an employer to give an employee their job back after a resignation or termination resulting from harassment.

Court orders. Other court orders may involve promotions, assignments, benefits, and other terms and conditions of employment that may have been impacted by harassment.

Extra damages. The law calls these liquidated damages or civil penalties. In New York City, companies where sexual harassment is committed may have to pay civil penalties of up to $250,000 in the case of a willful violation.

Punitive damages. New York has an updated law that allows workers who bring a successful lawsuit or who approach the state’s commission on unlawful discrimination to obtain punitive damages. Punitive damages may be much more than a worker would make in an ordinary year.

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