I’ve had the privilege of reading about the recently reported case of harassment by a judge in Illinois of a stenographer and police officer. Cook County Judge Mauricio Araujo is charged with having asked a stenographer “how much” for sex. Of course, this is the kind of behavior that makes headlines. But inevitably, there is something that happens any time an event like this makes papers. Many of my contemporaries, coworkers, readers of my blog, and just people in general begin to share their stories of the time that they were harassed or the kinds of experiences that they’ve had to deal with. Some of it is relatively tame and mutually laughed away, and some of it is downright illegal and should never be suffered by anyone in the workplace.
With every single one of those victims in mind, let’s start an informative discussion about what you might be able to do with regard to sexual harassment in your workplace. For purposes of this discussion I will focus primarily on New York State and federal law, because that’s where I am most knowledgeable, and I encourage all of us to spend some time researching and spreading information about our own individual states.
What is Sexual Harassment?
Before we do anything, let’s define what we’re talking about. When we discuss sexual harassment, there are three common forms of it. There is sexual harassment as defined in employment law, which is typically ongoing remarks due to a person’s sex, an ongoing pattern of discriminatory behavior because of a person’s sex, or retaliation for a person’s refusal of quid-pro-quo proposals from a manager. Succinctly, treating somebody adversely because of their sex is illegal. This logic extends to the manager who starts putting you on bad shifts because you won’t date him or her, or the coworker who continuously asks you to date him or her. The idea is the same: They are treating people adversely, affecting their working conditions, because of sex. The EEOC describes it as behavior so frequent or severe it creates a hostile work environment. The majority of this post will be about this primary type of employment harassment.
The second form of harassment is criminal harassment. Every state is going to have different laws on this, but criminal harassment can include things from simple Penal Law violations like Penal Law 240.26 harassment, which can include striking or following someone, to things like Penal Law 120.50, stalking, which is more or less to engage in a course of conduct that puts someone in reasonable fear of kidnapping or physical injury. This second form of harassment can be reported to the police or your local district attorney. The authorities can decide whether to bring charges or ask the criminal court for an order of protection on your behalf. If you are being harassed by someone you have had an intimate relationship with, you may be eligible to apply for an order of protection in family court, or in whatever court handles family law in your jurisdiction. Empower yourself and take a stand against this kind of treatment — and know you’re not alone.
The third form of harassment is harassment that doesn’t violate the law. Very briefly, people have very differing opinions when it comes to what the law should be, how harassment should be defined, and how seriously different events should be taken. It’s fair to give credit to this third type of harassment in that it can be unsettling, uncomfortable, or otherwise a rotten experience for its victims. Note that employers are generally allowed to set their individual sexual harassment policies very strictly, so even behavior that is otherwise legal may violate your employer’s sexual harassment policy and get an offender fired. That said, respectfully, we’re going to go back to harassment in an employment context.
With the understanding that the majority of stenographers nationwide are freelancers, I will start with employees because it is simpler to describe. Succinctly, under our federal law, the Civil Rights Law of 1964, Title VII, employers with 15 or more employees have a duty to stop discrimination against protected traits in the workplace. Protected traits include things like your race, creed, color, and sex.
So when we talk about harassment, we’re talking about discrimination that is occurring because of one’s sex. This can take many forms including a man constantly describing sexually explicit conquests to another male employee despite being told to stop because he’s “one of the guys” to, as earlier described, a supervisor requesting sexual favors in exchange for a more favorable job outcome or working condition. Generally, under the law, offhand comments or one-time incidents are not harassment. Generally, the unwelcome sexual harassment has to cause a hostile work environment from both your perspective and the perspective of a reasonable person. What this means is that it may hurt your a claim of harassment if you were inviting the harasser to make inappropriate comments, or if the “average person” wouldn’t consider it conduct so abusive or hostile that it would adversely impact their working conditions. Obviously, every situation is different, and there are a million reasons a complainant might make light of a situation, so you should know that even if you are unsure if the behavior violates the law, you may report it.
Typically, when you are being harassed at work, you must inform the employer. The employer has a duty to make that harassment stop. If the harassment does not stop, then you may file a charge with the EEOC. The EEOC will typically get your side of the story, get your employer’s side of the story, and then either attempt to mediate, take the case on your behalf, or give you a right to sue letter, which allows you to file a civil lawsuit against your employer for not making the harassment stop. A special note here, the right to sue letter sometimes has language such as the EEOC did not find discrimination — this “finding” doesn’t mean anything. The EEOC is not obligated to investigate deeply, and the courts do not hold you in any lower standing because of this letter. It is a standard letter which gives you a cause of action, a legal right, to sue. You can even, as far as I know, appeal the decision with the EEOC or request a hearing.
If you feel you are going to go through with a lawsuit, it is a good idea to speak to an employment lawyer right away, even before you get a right to sue letter, and possibly before you file an EEOC charge. If you are compelled to bring a case without a lawyer, you should definitely contact the local district court’s pro se unit. You will need to draft a legal complaint that meets the standards set by the Twombly and Iqbal cases, meaning you will have to draft a complaint that alleges facts that make out a valid claim. If it says “defendant harassed me,” that’s conclusory. If it says “defendant pushed me into a corner and said if I wanted to keep my job, I’d better do what defendant says,” that’s a factual statement. Overall, a good employment lawyer can go to bat for you and make that part of the process happen. The NYC Bar runs a legal referral service, and many lawyers waive their consultation fee. Some associations and lawyers also run legal clinics to help people with their legal questions if you have absolutely nobody else to turn to.
Ultimately, when you file an EEOC charge can be very important. There is a fairly strict 180-day time limit. For this reason, some individuals make a charge with the EEOC immediately upon notifying their employer of the harassment. Again, there is nothing wrong with this, and it is just asserting one’s right to not be harassed at work. 180 days may seem like a lot, but for a victim of ongoing harassment who is afraid to come forward, it can come and go in the blink of an eye. Pay special attention to when the bulk of the harassment you are looking to complain about happened.
Also know the process for filing a charge of discrimination may be different if you are a federal employee.
A quick note about retaliation. Often victims of workplace abuse do not speak up because they fear being ostracized or bullied by coworkers, supervisors, or other agents of the employer. This can be a very difficult decision to make, and nobody can ever blame a victim who does not come forward out of fear of further and amplified mistreatment. That being said, you should know that even if your claim of harassment is completely incorrect — meaning you believed there was harassment but the person you complained about is found to have not violated the law at all — you are still one hundred percent entitled to be free from retaliation. More abusive employers may suddenly try to put you on a work performance log, or switch your assignment to make you quit. If your employment is adversely impacted, you can file another charge with the EEOC, and even an employer that was totally in the clear can find themselves in hot water by retaliating against or allowing retaliation against an employee that has made a complaint to the employer or filed a charge with the EEOC.
A final important fact: The law recognizes that these situations are often complex, and there is not a one-size-fits-all solution. The employer is obligated to make the harassment stop. Some employers do that by firing the harasser. Some employers do that by offering additional training to the harasser. Some employers do that by giving the harasser an ultimatum, or transferring the harasser elsewhere. As a complainant, it is best for your own peace of mind to go into the situation with a mind towards resolution. This isn’t to say that people that commit harassment don’t deserve to be fired or that there aren’t cases where the employer does not take strong enough action, but it is to say that the reality is that the law allows a very wide variety of solutions, and if the harassment stops, you may have to come to terms with the harasser keeping their job.
Employees in New York, I do urge you to skip on to the “True IC” section, where we will address more rights you have.
Independent Contractors (Misclassified).
If you are an independent contractor but the hiring entity — the company or person that is hiring you as an independent contractor — is treating you as an employee, you may generally make the argument that you are a misclassified employee and that you are entitled to all the protections we just laid out above. In the post Workers Rights, we got right down to it and brought out the cold truth: Employers stand to make 30 percent more by misclassifying their employees. There is huge money in misclassifying employees. Honestly, if they are having you carry around their advertising material, micromanaging the manner in which you perform the work, and generally exercising direction and control over you with regard to the job you do for them, you may have a valid claim that you are a misclassified employee. Of course, this argument is so much legalese for the average person, that if you feel you fit into this category, it is likely in your best interest to talk to a lawyer about it.
Remember this: If an employer is giving you a 1099 and then using you as an employee, that’s illegal. What you both call the relationship is irrelevant. What matters is how they treat you. As a quick example, California came up with a three-part independent contractor test that is one of the strictest in the nation. If the work performed is the same as the hiring entity’s business, the hired entity should actually be an employee. Logically, this creates two ways of thinking. 1. Court reporting businesses aren’t in the business of court reporting, but finding court reporters, which the courts have ruled an unpersuasive argument in whether or not they should follow regulatory rules (Moose v US Legal). 2. Court reporting businesses are misclassifying their employees as independent contractors. Other states like New York include this in their determinations for things like Workers Compensation, but we do not as of today have a strict standard, and all cases are done on a case-by-case basis.
Independent Contractors (True IC).
Now we get to independent contractors who are indisputably independent contractors. It’s a sad thing to report that there is basically no protection for independent contractors federally. It is more or less legal for you to be discriminated against and harassed, and there does not seem to be any movement in Congress to pass laws stopping any of the behavior mentioned in this post. Notably, there are some articles out there that talk about complaints and possibilities for federal contractors or employees of contractors receiving federal money, but the hard truth is that a discrimination claim as an independent contractor is largely a lost cause. Until our Congress or our president act and make it clear that the workers of the gig economy should be protected, sexual harassment against independent contractors will be legal.
Or is it? If you are a New Yorker, we actually have in our constitution a section that has come to be known as the New York State Human Rights Law. New York City also has a New York City Human Rights Law. Both of these largely mirror Title VII of the Civil Rights Act of 1964, and prevent discrimination based on protected traits or classes. Generally, it is even easier to bring a claim under the New York City Human Rights Law than under Title VII. The New York City Human Rights Law, in the words of some lawyer blogs, puts less of a burden on victims of sexual harassment bringing a claim. Even luckier, the legislature has amended the New York State Human Rights Law to demand that employers protect non-employees in the workplace.
What does this mean? This means just like an employee, you have the right to go to our New York State Division of Human Rights or an employment lawyer and get help with sexual harassment you receive “at work” or “in the workplace” whether you are an independent contractor or an employee. The bottom line is that the place you are working at has a legal duty to make the harassment stop. Remember that unlike Title VII of the Civil Rights Act 1964, the New York State Human Rights Law protects sexual orientation. Understand that in New York, whether you’re an employee or an independent contractor, you have these rights, and rights only matter when you assert them.
We live in a time when knowledge is at our fingertips. Any person could string together a bunch of links and some explanations about this stuff. Far be it from me to say that my perspective is the right one. But I see it as this: We know there are victims out there, and we know that these sorts of things happen. Therefore, it is down to us to share this knowledge with those who are facing these problems, and create an environment where harassment and retaliation are not only the exception, but eradicated. Personally, I have seen a community where, when these things happen, stenographers stand more or less unified with each other. It’s through that kind of unity and solidarity that makes this a great field to work in, and can make this a field that teaches all of its members how to respond to or what they can do when they face sexual harassment or workplace discrimination. Simply put, the way forward is together.
August 12, 2019 update:
NEW YORK has apparently taken further steps since my article to facilitate judicial accessibility for sexual harassment victims, including lowering the standard by which such allegations may come to court.