Why Reporting Workplace Harassment Matters in NYC

By David DeToffol | December 17, 2024
0 Comments

Complaining About Harassment

The Difference Between Rude Behavior and Harassment

Not every instance of disrespectful, offensive, or rude behavior at work is illegal. Employees may endure rude comments, bad moods, or unfairness that feels wrong but does not meet the legal definition of harassment. Certain factors must be present to rise to the level of illegal workplace harassment. For example, illegal harassment often involves behavior that targets an individual because of protected characteristics such as race, religion, sex, national origin, age, disability, sexual orientation, gender identity, or other legally protected categories.

This line between unlawful harassment and ordinary friction matters because your legal options differ significantly depending on what type of behavior you face. A New York City employment attorney can help you determine where your experience falls along this spectrum.

Hostile Work Environment

The term “hostile work environment” can be used in an everyday sense to describe any unpleasant or abusive work environment, but it has a specific legal meaning when used in the context of employment discrimination. A hostile work environment in plain English and an illegal hostile work environment are two different things.

  • Illegal Hostile Work Environment:
    • Targets a protected class (e.g., race, religion, gender, age, national origin, or disability) or illegal retaliation.
    • Involves harassment or discrimination due to membership in a protected class.
    • Violates federal and state anti-discrimination laws.
  • Everyday Hostile Work Environment:
    • Refers to unpleasant or hostile behavior not based on discrimination.
    • More often falls into the category of bullying.
    • Likely not illegal and does not typically support a legal claim.

The Importance of Reporting Harassment to Human Resources

Putting Your Employer on Notice

If you find yourself facing unlawful harassment, one of the first things you should do is report it to the proper channels within your company. Most organizations designate a contact person or department—often human resources or an equivalent management role—to receive and respond to complaints of harassment. Reporting the conduct puts your employer on notice that there is a problem.

  • Employer Responsibility: Once an employer knows about harassment, it must investigate and, if needed, take corrective action.
  • Lack of Notice Defense: Without a report, the employer can argue it had no chance to address the issue.
  • Official Record: Reporting creates a record of your complaint, showing you acted to stop the behavior and gave your employer a chance to fix it.

The Ellerth-Faragher Defense Explained

Origin and Purpose of the Ellerth-Faragher Defense

The Ellerth-Faragher defense takes its name from two U.S. Supreme Court cases: Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton. Decided in 1998, these cases established an important principle in federal employment law. When harassment is committed by a supervisor and does not result in a tangible employment action (like firing, demotion, or a cut in pay), the employer can sometimes avoid liability if it shows that:

  1. It exercised reasonable care to prevent and correct any harassing behavior.
  2. The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

In other words, if an employee does not report the harassment, the employer might escape liability if it can show it would have taken steps to stop the misconduct had it known about it. The Ellerth-Faragher framework aims to encourage employers to implement policies and reporting procedures and to encourage employees to use them. It seeks to strike a balance: employers must be proactive in preventing harassment, and employees must speak up so the employer can intervene.

Applying the Defense in Federal Cases

Under federal law, particularly Title VII, the Ellerth-Faragher defense remains a significant factor in harassment claims that involve supervisors but do not result in tangible employment actions. Suppose you experience a hostile environment created by your supervisor’s repeated discriminatory comments. If you never complain internally—even though your employer has a policy for doing so—the employer might later raise the Ellerth-Faragher defense.

They might argue, “We had a policy in place, and if we had known about this harassment, we would have taken immediate steps to stop it.” If the court finds that you did not report the harassment despite having a reasonable opportunity to do so, it may limit or eliminate the employer’s liability.

Unresolved Questions Under New York State Human Rights Law

The Uncertain Applicability of the Ellerth-Faragher Defense

  • Federal Law: The Ellerth-Faragher defense is well established under federal law.
  • New York State Law: Its applicability under the New York State Human Rights Law (NYSHRL) remains uncertain.
  • Intermediate Courts: Some appellate courts assume the defense applies under Executive Law § 296.
  • Lack of Clarity: The New York Court of Appeals has not issued a definitive ruling, creating ambiguity and varied interpretations across the state. This means it remains unclear whether the Ellerth-Faragher defense can still be used under the NYCHRL.

In practice, some courts will apply the reasoning of Ellerth and Faragher to claims brought under state law, while others may express uncertainty or signal that the issue is not settled. Because of this lack of clarity, it is essential to recognize that the legal landscape in New York is more complex than it might seem at first glance.

The Faragher-Ellerth Defense and the New York City Human Rights Law

A Different Standard Under the NYC Human Rights Law

  • Broader Protections: The NYCHRL offers greater employee protections compared to federal and state laws.
  • Employee-Friendly Standards: It applies more favorable standards in harassment and discrimination cases.
  • Faragher-Ellerth Defense: Courts hold this defense is not available under NYCHRL, especially for harassment by managers or supervisors.
  • Employer Accountability: Employers can be held responsible for a hostile work environment created by supervisors, regardless of whether the employee reported it.
  • City Emphasis: NYC laws prioritize employer responsibility and proactive prevention over shifting blame to employees.

How a New York City Employment Attorney Can Help

Clarifying Your Rights and Options

When you experience harassment, the legal landscape can seem complicated. A New York City employment attorney can break down your rights and options in a way that you can understand. They can help you identify whether the behavior you are experiencing qualifies as illegal harassment, advise you on the applicable laws, and guide you on the next steps. Rather than navigating this complex process alone, having an expert on your side can provide peace of mind.

Evaluating the Strength of Your Claim

An employment law firm in NYC can help you evaluate the strength of your potential claims. They will consider factors such as the severity and frequency of the harassment, whether it targets a protected characteristic, what documentation you have, and if you have followed internal complaint procedures. With this information, they can advise you on the likelihood of success if you pursue legal action and what kind of outcome you might expect. Knowing where you stand can inform your decision-making process and help you set realistic goals.

Protecting Your Rights Starts Now

Our firm is here to help. DeToffol & Gittleman can offer guidance by phone, video, or in person. We understand New York’s employment laws and can advise you on your next steps. Reaching out promptly increases the likelihood of a favorable outcome. Contact us today to schedule a consultation: https://ddtlaw.com/contact/.

Disclaimer

This article provides general information about employment law in New York City. It is not legal advice and does not create an attorney-client relationship. The law can change often, and legal outcomes vary based on individual circumstances. Laws may differ by jurisdiction, and recent legal developments may not be included here. Consult an experienced New York City employment attorney for advice about your situation.