Hostile Work Environment in New York
A hostile work environment is unwelcome conduct because of sex or gender that makes a workplace abusive to work in. It can be verbal, physical, visual or digital, and it can come from a supervisor, a coworker, a client or a vendor.
Whether that conduct is unlawful depends on which law applies, and the three that apply in New York set three different thresholds. Conduct that fails the federal test can still be actionable under the State and City laws.
1990
New York bar
2006
Supreme Court bar
All four
NY federal districts
1998
Thurgood Marshall Award, NYC Bar
What Is a Hostile Work Environment?
A hostile work environment claim is about the conditions you work in every day. When a job benefit or punishment depends on whether you give in to sexual demands, that is a different kind of harassment claim. Under federal law, harassment doesn’t have to be motivated by sexual desire to count as harassment because of your sex.
An example
Picture a manager who keeps telling you that women can’t do this job. He mocks you in team meetings and sends you messages saying the same thing.
Comments and messages like that can count as harassment because of your sex under State law, when they make the conditions of your job worse.
How Each Law Measures a Hostile Work Environment
If you work in New York, up to three laws can apply to harassment at work, and each one sets its own bar.
Federal Law, Title VII
Conduct can be legally actionable because it is severe – meaning a single incident was extreme enough to alter the workplace on its own – or because it is pervasive – meaning a pattern of less extreme conduct, repeated over time, had the same cumulative effect.
Under federal law, harassment is unlawful when it is severe or pervasive enough to change the conditions of your job and create an abusive working environment. Importantly, the conduct must satisfy both an objective and subjective test: a reasonable person in the employee’s position must find the conduct hostile, and the employee must have actually perceived it that way.
New York State Law
If you work in New York State, State law protects you from sexual harassment at work.
Under New York State law, harassment because of your sex is unlawful when it makes the conditions of your job worse. It doesn’t have to be severe or happen again and again. Your employer has a defense if it proves the conduct was only petty slights or trivial inconveniences to a reasonable victim of discrimination who shares your sex.
Under State law, you also don’t have to show that another employee was treated better than you.
New York City Law
If you work in New York City, the City’s Human Rights Law also protects you, and for harassment based on gender it covers every employer, whatever its size.
Under New York City law, the question is whether you were treated less well because of your gender. That is normally shown simply by unwanted gender-based conduct. How severe or how frequent the conduct was matters to the damages you can recover under City law, not to whether the employer is liable. Your employer has a defense under City law if it proves the conduct was nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences.
Up to three laws can apply to your job. Find out which ones in a free, confidential consultation.
What Conduct Can Create a Hostile Work Environment?
Examples include:
- repeated comments, jokes or slurs about sex or gender
- explicit images or messages
- unwanted touching
- remarks about a person's body
- demeaning treatment aimed at someone because of their sex
- any of these sent by text, email or a chat app
Conduct like this can count as harassment because of your sex under State law, when it makes the conditions of your job worse.
Harassment happens to men as well as women.
Who Is Your Employer Responsible For?
Managers and co-workers
Under New York City law, your employer is responsible for harassment by someone who has a manager’s or supervisor’s authority. For harassment by a co-worker or another employee or agent, your employer is responsible under City law if it knew and went along with it or failed to take immediate and appropriate corrective action. It is also responsible if it should have known and failed to use reasonable diligence to prevent it. Your employer is treated as knowing when a manager or supervisor knew.
Customers and clients
Picture a regular customer who keeps commenting on your body while your manager shrugs it off. Under the guidelines of the federal Equal Employment Opportunity Commission (EEOC), your employer may also be responsible for harassment by customers, clients or other non-employees in the workplace. That applies when your employer, or its agents or supervisors, knew or should have known and failed to take immediate and appropriate corrective action. The EEOC considers how much control your employer had over them and any other legal responsibility it had for their conduct.
How Employers Defend Hostile Work Environment Cases
If you bring a claim, expect your employer to argue some of these:
- the conduct was not severe or pervasive
- it was only petty slights or trivial inconveniences
- the company responded properly once it knew
- the conduct was welcome
- nobody in charge knew
We represent individuals, never employers, in sexual harassment cases across New York. John Howley spent nearly two decades at Kaye Scholer LLP defending Pfizer, Novartis, GlaxoSmithKline, Citibank, Texaco and Sony, and today we represent employees facing harassment at work against companies like them. Knowing how those defenses are built lets us show you early where your employer will push, and get your case ready for it.
If we take your case, it is not passed off to a paralegal or a junior lawyer.
What Proves a Hostile Work Environment?
Your evidence builds over time, and we look at the whole picture, not one moment alone.
You can start today:
1write down what happened, when and where, and who saw or heard it, after each incident – details fade fast
2note the people you told at the time – they can confirm what you said back then
3save texts and messages sent to your own phone – the sender can delete them
4note how your work changed before and after the harassment began – it shows what the harassment cost you
5report the harassment in writing, following your employer’s policy, and keep a copy – it creates a record of what your employer was told
Keep your notes at home, where you control them, and never on a work computer or a work account. Do not start downloading company data. Preserve what you already lawfully possess, identify where other evidence sits, and leave it there for a lawyer to analyze and advise on.
In your consultation, we tell you what is safe to keep and what to leave alone.
How Long You Have to File a Hostile Work Environment Claim
There are strict time limits, and acting early protects your rights.
The main deadlines are:
- 300 days from the harassment to file a charge, a formal complaint, with the federal Equal Employment Opportunity Commission (EEOC) under Title VII, if your employer has 15 or more employees
- three years to file a complaint with the New York State Division of Human Rights, counted from the discrimination you're complaining about
- three years to file a lawsuit in court under the State Human Rights Law
- three years after the harassing conduct to file a complaint about gender-based harassment with the New York City Commission on Human Rights
- three years to file a lawsuit in court under the New York City Human Rights Law, counted from the discrimination you're complaining about
If you first filed with a State or City agency, your time to file with the EEOC can be shorter.
When Conduct May Not Amount to a Hostile Work Environment
Minor annoyances, isolated trivial comments, and ordinary personality conflicts generally are still not enough to support a claim. A co-worker who tells an embarrassing or offensive joke once in a while is usually not sufficient to support a claim for significant damages. However, behavior that would previously have been dismissed under the federal standard may now support a valid claim under New York law.
Preserve the evidence you already have, but speak with an employment lawyer before copying, downloading, or removing confidential company records.
No case is perfect, and we will tell you the truth about yours, even when it is not what you hoped to hear.
We never act for the person accused. We take harassment cases for people who work in New York. We do not take medical abuse cases against a doctor or a hospital, and we do not defend professional licenses. If your problem is one we don’t handle, we will tell you so and help you find a lawyer who does.
Questions People Ask About Hostile Work Environment Claims
Does "Severe or Pervasive" Apply to a Hostile Work Environment Claim in New York?
Not under New York State law or New York City law. Federal law still uses it.
Do I Have to Complain to My Employer First?
If you never complained to your employer about the harassment, that fact alone doesn’t decide whether the employer is legally responsible.
Can One Serious Incident Be Enough?
In some situations, a single serious incident – such as unwanted physical contact or coercive sexual conduct – may still be enough on its own.
Does Harassment Over Text or a Chat App Count?
Messages sent by text, email or a chat app can count as harassment because of your sex under State law, when they make the conditions of your job worse.
What If Reporting the Harassment Made Things Worse?
New York State law makes it unlawful for an employer to retaliate against any person because that person opposed any practices the State Human Rights Law forbids, or filed a complaint, testified or assisted in any proceeding under that law.
Speak With The Howley Law Firm About a Hostile Work Environment
This can be hard to talk about. You did nothing wrong.
We will listen, review your documents, and tell you honestly whether you have a claim.
Your first conversation is a free, confidential consultation with a lawyer at the firm, not an intake person. We take most cases on a contingency fee and advance the costs. In those cases, there is no fee unless there is a recovery. If you can, have a dated list of what happened ready, along with the names of people you told.
Our staff answer the phone at any hour, in English and Spanish, and book a free, confidential consultation with a lawyer at the firm.