In many cases, yes. Sexual harassment in the workplace is illegal under both federal and New York law, but when the alleged harasser is a co-worker rather than a supervisor, the rules around employer liability are somewhat different. If you are experiencing sexual harassment by a co-worker in New York, you may still have the right to sue your employer – but your case will generally depend on whether the employer knew (or should have known) about the harassment and failed to take appropriate action.
What Counts as Sexual Harassment by a Co-Worker?
Sexual harassment is a form of unlawful discrimination based on sex. It can take many forms, including unwanted sexual advances, inappropriate comments, offensive jokes, displaying explicit material, or any behavior that creates a hostile or abusive work environment.
There are two main categories of sexual harassment:
Hostile Work Environment: This is the most common type in co-worker situations. It occurs when unwelcome conduct based on sex makes your workplace intimidating, hostile, or offensive.
Quid Pro Quo Harassment: This typically involves a supervisor or someone with authority, so it is less common in co-worker cases.
Do I Have to Prove Co-Worker Harassment Was Severe or Pervasive?
Not under New York law. Under the New York State Human Rights Law (NYSHRL), the standard is relatively employee-friendly. You do not have to prove that the harassment was “severe or pervasive.” Instead, you only need to show that you were subjected to inferior terms, conditions, or privileges of employment because of your sex. The New York City Human Rights Law (NYCHRL), if applicable, provides even broader protections.
When Is an Employer Liable for Co-Worker Harassment?
Unlike cases involving supervisors – where employers are often automatically liable – co-worker harassment cases require a showing that the employer was negligent in addressing the situation.
In general, an employer can be held liable if:
The employer knew about the harassment (for example, you reported it to HR or a manager), or
The employer should have known about it (because the behavior was obvious or widespread), and
The employer failed to take prompt and appropriate corrective action.
Appropriate action includes investigating the complaint, disciplining the offending employee, or taking steps to prevent further harassment. If an employer responds quickly and effectively, it may be able to avoid liability. However, if it ignores complaints, conducts a superficial investigation, or allows the behavior to continue, it may be held responsible.
Do I Have to Report Co-Worker Harassment Before I Sue?
Not necessarily. In co-worker harassment cases, reporting the conduct internally is often critical. While New York law does not strictly require you to file an internal complaint before pursuing legal action, failing to report may make it harder to prove that your employer knew about the problem.
Most employers have anti-harassment policies and complaint procedures outlined in an employee handbook. Following these procedures – such as reporting to HR or a designated supervisor – can strengthen your claim. If you feel uncomfortable reporting to a particular person (for example, if they are involved), you can usually report to another manager or HR representative.
How Should I Document Harassment by a Co-Worker?
Strong documentation can make a significant difference in your case. Keep detailed records of:
- Dates, times, and locations of incidents
- What was said or done
- Names of any witnesses
- Copies of emails, texts, or other evidence
This information can help establish a pattern of behavior and demonstrate that the harassment affected your working conditions.
How Do I File a Co-Worker Harassment Claim in New York?
If your employer fails to address the harassment, you have several legal avenues:
Administrative Complaints: You can file a complaint with the New York State Division of Human Rights (NYSDHR), the Equal Employment Opportunity Commission (EEOC), or, if you work in New York City, the NYC Commission on Human Rights.
Court Lawsuit: In many cases, you can file a lawsuit directly in state court under the NYSHRL or NYCHRL without first going through an administrative agency. It is important to note, however, that if you want to pursue sexual harassment claims under federal law, you must file your complaint first with the EEOC
Be mindful of deadlines. For example, EEOC claims generally must be filed within 300 days of the last act of harassment, while state law claims may have longer statutes of limitations depending on the forum.
What Compensation Can I Recover for Co-Worker Harassment?
If your claim is successful, you may be entitled to compensation, including:
- Lost wages (back pay and possibly front pay)
- Compensation for emotional distress
- Punitive damages (in certain cases)
- Attorney’s fees and costs
New York laws – particularly the NYCHRL – allow for robust remedies, making them powerful tools for employees facing workplace harassment.
Can My Employer Retaliate Against Me for Reporting a Co-Worker?
It is illegal for your employer to retaliate against you for reporting sexual harassment or participating in an investigation. Retaliation can include termination, demotion, reduced hours, or other negative actions. If retaliation occurs, it can form the basis of a separate legal claim – even if the underlying harassment claim is not ultimately proven.
Get an Experienced Sexual Harassment Lawyer on Your Side
Yes, you can sue your employer in New York for sexual harassment by a co-worker – but success typically depends on showing that your employer failed to take appropriate action after becoming aware of the harassment. The law expects employers to maintain a safe and respectful workplace, and when they fall short, they can be held accountable.
Because these cases often hinge on specific facts – such as what the employer knew and how it responded – you should consult with an experienced employment attorney. An attorney can help evaluate your situation, guide you through the legal process, and work to protect your rights.
If you are experiencing harassment, taking action early – by documenting incidents and reporting them – can significantly strengthen your ability to pursue a claim and bring the misconduct to an end.
John Howley spent nearly two decades at Kaye Scholer LLP defending companies such as Citibank and GlaxoSmithKline, and we now take on companies like them for employees.
Call us at (212) 601-2728. The first conversation is free and confidential. We take most cases on contingency, so you pay no legal fee unless there is a recovery.
