New York Labor and Employment Law Report

On January 15, 2019, the New York legislature passed the Gender Expression Non-Discrimination Act (“GENDA”).  GENDA, which faced more than a decade of impasse in the State Senate, was signed by Governor Cuomo on January 25, 2019.

Read More >> New York Passes GENDA: Discrimination Now Prohibited Based on Gender Identity or Expression

On October 1, the New York State Division of Human Rights issued its final model sexual harassment policy and training guidelines to assist employers in complying with the new sexual harassment legislation that will become effective October 9, 2018.  One piece of good news for employers is that the Division's final training guidelines no longer require that employers train all employees by January 1, 2019, as the Division initially proposed.  Instead, according to the FAQs, employers will have until October 9, 2019 -- a full 12 months from the effective date of the legislation -- to complete the training for all employees.  In addition, the Division's final training guidelines no longer require that new employees complete the sexual harassment training within 30 calendar days of starting their job.  Instead, the Division's guidelines simply encourage employers to train their new employees "as soon as possible" after beginning employment.

Read More >> New York Issues Final Model Sexual Harassment Policy and Training Guidelines

There has recently been a lot of talk about New York State’s new sexual harassment policy and training requirements that will be taking effect state-wide on October 9, 2018.  But New York City employers must also beware of new requirements specific to New York City, some of which will be taking effect on September 6, 2018.

Read More >> New York City Employers Beware: New Posting and Training Requirements on Sexual Harassment Will Soon Take Effect

The Equal Employment Opportunity Commission is seeking public comment on its newly proposed enforcement guidance addressing unlawful workplace harassment under the federal anti-discrimination laws.  The initial deadline for employers and other members of the public to submit input regarding the proposed guidance was February 9, but the EEOC just announced today that it was extending the deadline to March 21. The publishing of the new proposed guidance stems from the recommendations made last June by the EEOC’s Select Task Force on the study of harassment in the workplace.  If put into effect, the new guidelines would supersede pre-existing agency guidelines created during the 1990s.  The EEOC issued a press release, in which EEOC Commissioner Chai Feldblum was quoted as saying:  “This guidance clearly sets forth the Commission's positions on harassment law, provides helpful explanatory examples, and provides promising practices based on the recommendations in the report.” The majority of the 75-page guidance offers an overview of the EEOC’s positions on the following topics:

• harassment based on protected characteristics (race, color, national origin, religion, sex, age, disability, and genetic information);
• establishing causation;
• harassment resulting in discrimination based on a term, condition, or privilege of employment;
• defining hostile work environment claims;
• employer liability standards; and
• systemic harassment.

In its guidance, the EEOC also suggests a number of “promising practices” to help employers eliminate workplace harassment including:

• committed and engaged leadership;
• strong and comprehensive harassment policies;
• trusted and accessible complaint procedures; and
• regular and interactive anti-harassment trainings.

In its press release accompanying the issuance of the proposed guidance, the EEOC stated that the new guidance is necessary because the number of harassment claims filed over the past several years is on the rise.  According to the EEOC, between 2012 and 2015, the percentage of private sector charges that included an allegation of harassment increased from slightly more than one-quarter of all charges annually to over 30% of all charges.  In 2015, the EEOC received 27,893 private sector charges that included an allegation of harassment, accounting for more than 31% of the charges filed that year. Employers who are interested in providing input on the proposed guidance may do so by submitting comments through www.regulations.gov, or by sending written feedback to:  Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.  The EEOC will consider input from the public before finalizing and issuing the guidance.  In addition, this would be an opportune time for employers to review their anti-harassment policies and complaint procedures, to revise those policies and procedures if necessary, and to conduct some anti-harassment training for employees.

In 2015, the Equal Employment Opportunity Commission (EEOC) received almost 28,000 charges of discrimination alleging workplace harassment -- a number that has remained relatively constant over the last five years.  In response, the EEOC formed a Select Task Force -- comprised of member representatives from multi-disciplinary backgrounds -- who spent the past year strategizing to find innovative solutions. The culmination of that effort -- the "Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace" -- was recently released.  The Report discusses how employers might reduce harassment concerns by proactively focusing on unwelcome conduct and targeting behavior that, if "left unchecked, may set the stage for unlawful harassment." The Report provides comprehensive recommendations that target harassment from all angles.  The findings demonstrate that while training sessions are essential, they should not be focused on merely avoiding legal liability.  Instead, employers should tailor programs to meet the particular needs of the company, developing a "holistic culture of non-harassment that starts at the top" and holds all levels of employees accountable for their role in prevention.  "One size does not fit all" and unique programs are needed to "ensure that those who engage in harassment are held responsible in a meaningful, appropriate, and proportional manner, and that those whose job it is to prevent or respond to harassment should be rewarded for doing that job well (or penalized for failing to do so)." The Report provides practical resources, including checklists and a "risk factor" analysis, to help employers assess their organization and respond appropriately. Finally, the Report proposes exploring new approaches to anti-harassment trainings, including "bystander intervention trainings" -- that give employees tools to intervene when they witness harassing behavior -- and "civility trainings" -- that foster a general culture of respect and workplace civility aimed at all employees, regardless of whether a person falls into a legally protected class. Employers would be well-advised to review the Task Force’s Report and recommendations and determine if additional workplace training is warranted.  If you determine that additional workplace training is necessary, please contact your labor and employment counsel at Bond to discuss our training capabilities. Editor's Note:  Mara Afzali, one of Bond's Summer Law Clerks, assisted in the preparation of this blog post.

As we reported in a blog post last month, although neither the federal nor state law expressly prohibits discrimination on the basis of gender identity or expression, Governor Cuomo bypassed the legislative process and urged the New York State Division of Human Rights to issue regulations that will interpret the state’s anti-discrimination prohibitions to cover transgender individuals.  Just this week, the New York State Division of Human Rights adopted those regulations.  The regulations, which became effective on Wednesday, make discrimination or harassment against transgender applicants and employees unlawful, and require employers to accommodate transgender individuals who have been diagnosed with a medical condition referred to as “gender dysphoria” – a medical condition related to an individual having a gender identity different from the sex assigned to him or her at birth. In addition, the New York City Commission on Human Rights recently issued a guidance document on what constitutes discrimination against transgender people under the New York City Human Rights Law.  The Commission’s guidance provides numerous examples of employer actions that violate the NYCHRL, including failure to use an individual’s preferred name, pronoun or title, denying transgender employees the use of restrooms consistent with their gender identity, and even enforcing dress codes that make differentiations based on sex or gender.  The Commission’s recent guidance also announces much more strict penalties for transgender discrimination.  Under the NYCHRL, civil penalties can range from $125,000 to $250,000 for violations that are deemed to be “willful, wanton or malicious.”  The Commission announced that, among other factors, it will consider the lack of an adequate discrimination policy as a factor in assessing penalties. Employers should review and revise their EEO and anti-harassment policies in light of these recent changes.  Employers should also consider taking steps to educate and train their employees regarding these new requirements.

After several unsuccessful attempts to pass the Gender Expression Nondiscrimination Act, which would have extended the nondiscrimination protections in the New York Human Rights Law to transgender individuals, Governor Cuomo took the unprecedented step of directing the New York State Division of Human Rights to issue regulations that would protect transgender applicants and employees in New York. The proposed regulations, which were published in the New York State Register on November 4, 2015, make discrimination and harassment on the basis of gender identity or the status of being transgender a form of sex discrimination prohibited under state law.  The proposed regulations would also make “gender dysphoria” a protected disability under state law, prohibit harassment on the basis of one’s gender dysphoria, and obligate employers to provide accommodations to employees diagnosed with gender dysphoria.  The regulations define “gender dysphoria” as a “recognized medical condition related to an individual having a gender identity different from the sex assigned to him or her at birth.” The 45-day comment period recently ended, which clears the way for the Division of Human Rights to adopt the regulations.  However, it is anticipated that the Division will wait until early 2016 to begin enforcing the Human Rights Law with respect to transgender applicants and employees.  The anti-discrimination statute in New York City and several other city ordinances already extend protection to transgender individuals.  In addition, earlier this year, the Department of Justice and the EEOC began interpreting the sex discrimination prohibition in Title VII of the Civil Rights Act to cover discrimination against transgender individuals.  The Office of Federal Contract Compliance Programs also issued a final rule prohibiting federal contractors from discriminating against employees or applicants based on their sexual orientation or gender identity. A great deal of litigation is likely to occur in this area in the upcoming year, not only to challenge the application of the various federal and state laws to transgender individuals, but also to address complex and sensitive issues including how employers will need to handle issues of confidentiality, employee benefits, accommodations for restroom access, and other issues that might arise for employees transitioning from one gender to another.  Employers would be well-advised to begin to review their employee handbooks and other employment policies and practices to prepare for these expanded protections for transgender employees and applicants.

Conducting workplace investigations is one of the most challenging and most important duties that Human Resource professionals must take on.  With the slew of existing laws, how Human Resource professionals respond to complaints about harassment or other misconduct can have huge legal and practical implications for the employer.  Unfortunately, Einstein’s definition of insanity -- doing things the same way and expecting a different result -- all too often is at play when it comes to conducting effective investigations.  Unfortunately, employers make the same mistakes time and again, exposing themselves to potential legal liability.  These common mistakes often result in lawsuits being filed by the complaining employee or by the employee who is fired or disciplined.  Here is a list of 10 common mistakes Human Resource professionals should avoid to minimize unnecessary legal exposure. 1.  Failing to Investigate or Ignoring Complaints Failing to take action when a complaint is made is one of the biggest mistakes employers can make.  Choosing not to conduct an investigation after acquiring knowledge of the alleged inappropriate conduct will result most likely in the company being legally responsible for harm caused to any employee, client, and others due to the inappropriate conduct.  Regardless of how frivolous or unfounded the complaint appears, or who made the complaint, an investigation should be conducted.  Even allegations made by employees who have a history of making complaints or are regarded as “troublemakers” at work should not be ignored.  Equally important, the mere fact that the complaint may be anonymous does not excuse the failure to investigate.  Obviously, the task is more difficult but the investigation nonetheless should be conducted. 2.  Not Creating an Investigation Plan Failing to create a preliminary plan for the investigation creates serious issues because it often results in the purpose of the investigation being misunderstood or forgotten.  Before diving into the investigation, make sure you’ve thought about the five W’s:  (1) Why are you investigating?; (2) Who will conduct the investigation?; (3) Who are the witnesses that need to be interviewed?; (4) What evidence needs to be collected?; and (5) What is your investigation timeline? 3.  Taking Too Long to Investigate Delaying the initiation of the investigatory process after being notified of an issue may lead to employer liability.  Particularly in harassment and discrimination cases, an employer’s decision to delay an investigation may be viewed as subjecting the employee to additional unlawful behavior.  Nonetheless, making sure an investigative plan is properly prepared remains important.  Therefore, Human Resource professionals must strike a balance between adequately preparing for the investigation and avoiding unreasonably long delays. 4.  Not Having Trained and Ready Investigators or Selecting the Wrong Investigator A failure to have trained investigators prepared to promptly respond to complaints can result in an ineffective and drawn out investigation.  Employers should have a few employees trained to conduct an impartial, professional, and credible investigation.  Another option is to hire a trusted Human Resources colleague or use in-house or outside counsel to conduct the investigation.  No matter who you choose as the investigator, making sure that the investigator is trained and able to begin the investigation promptly is key. Depending on the nature of the allegations, you also need to be sure you have selected the right person for the job.  For example, having a former senior law enforcement official interview relatively young employees regarding highly sensitive allegations of a sexual nature may not be the most effective way to get the truth! 5.  Not Doing a Thorough Investigation Conducting a sloppy investigation by failing to interview necessary witnesses, failing to review relevant documents, and ignoring potential issues that come up during the investigation can create just as much legal exposure as not doing an investigation at all.  You should make sure that every investigation is thorough, not only to ensure that the alleged misconduct is properly dealt with, but also to counteract any accusations by an employee that the investigation was ineffective. 6.  Conducting Unlawful Searches Searching an employee’s personal belongings or monitoring certain communications without consent can result in the employer breaking several federal and state laws.  To avoid liability, it is good practice for employers to make employees aware of its surveillance policies and obtain consent from employees to monitor and access communications and information contained on any electronic devices employees are given access to at work. 7.  Using Aggressive or Unwelcoming Interview Styles An employer may become the target of a lawsuit if its investigators are overly aggressive when interviewing employees about alleged misconduct.  Aggressive tactics may result in legal claims such as false imprisonment and coerced confessions, just to name a few.  More practically, the employer risks not getting the whole story, dissuading employees from cooperating in the investigation, and not reaching the correct conclusion in the matter.  To avoid aggressive interviewing, you should consider appropriate locations to conduct the interviews, outline questions in advance, and use open-ended questions when able, to get the entire story.  As noted above, the “right” investigator can and often does make a big difference in making witnesses feel comfortable so that they will be cooperative instead of obstructing the investigation. 8.  Making Confidentiality Promises Although it is reasonable for an employer to encourage everyone involved in the investigation to keep the matter private, an employer should never promise an employee that his or her complaint will remain confidential.  There will always be certain information that must be disclosed in order for a thorough investigation to be completed.  Moreover, depending again on the nature of the allegations, employers run the risk of a possible violation of federal labor law (considering the NLRB's Banner Health decision) if they demand absolute confidentiality by the witnesses. 9.  Failing to Create a Report Don’t underestimate the value of documenting investigations and credibility determinations to help support the company’s action or inaction regarding the allegations.  Not appropriately documenting necessary evidence, information provided during interviews, and any other relevant findings is just as bad as failing to conduct an investigation.  “The dog ate my homework” does not work very well in the legal arena.  When there is no record of the information obtained to support your determination, there is no way to show that a proper investigation was done and that an appropriate determination was reached.  An investigatory report should be prepared for every single investigation and should include a summary of the matter, the identity of the complainant, the accused, and all witnesses, a description of the relevant documents, findings, credibility determinations, and the recommended action. 10.  Failing to Make a Determination Failing to reach a conclusion and take the necessary steps to stop misconduct and prevent it from occurring in the future will ultimately result in the employer once again exposing itself to legal liability.  Once the report has been completed, a determination should be made regarding whether the misconduct occurred and what appropriate actions should be taken.  Make sure, especially in cases of harassment, that the complainant does not suffer any adverse employment actions resulting from the determination unless you can prove that the allegations were made in bad faith.  When a determination is made, you should consider not only if the chosen action appropriately corrects the problem, but whether it also sends a message to coworkers of what the consequences are for harassing behavior or misconduct. Following these basic common sense steps should go a long way in helping you ensure your employer avoids unnecessary liability.

In prior blog articles, we’ve visited the battle field with Sun Tzu to learn the art of defending employment litigation, Santa’s Workshop for a holiday reminder that we can be sued for just about anything, and the major league baseball diamond with A-Rod for a lesson in swinging for the fences with the faithless servant doctrine.  Our next stop on the Employment Law Express is to confer with one of the foremost Zen-masters on a more peaceful approach to our day-to-day employment matters.  That master is none other than the venerable Winnie the Pooh. Often thought of only as a cuddly focal point in children’s fiction, Pooh Corner offers a host of spiritual wisdom that has broad applications as to how we can best manage our day-to-day strife in the world of human resources.  So let’s take a careful look at some of the more astute Pooh-isms and what they tell us about how best to minimize the agita in our work. "It's more fun to talk with someone who doesn't use long difficult words but rather short easy words like, 'What about lunch?'" Indeed, though apparently Winnie the Pooh has never had lunch with a lawyer.  Not using (I thought about using the word “Eschewing”) long difficult words is not only wise but an absolute necessity in the world of employment law.  Take, for example, company handbooks and policies.  Their whole purpose is to provide clear notice to employees of the rules governing their employment.  The use of “long difficult words” defeats this purpose.  Ambiguity and uncertainty breed escape hatches for employees which, in turn, disrupt the tranquility of human resources operations. The use of “long difficult words” also becomes a serious problem when trying to enforce a non-compete agreement.  Some courts will hold that ambiguous non-compete clauses are either not enforceable at all or require a full-blown trial to enforce them.  Consequently, it is “more fun” to enforce a non-compete clause that is worded using short easy words that make the employee’s obligations crystal clear.  This holds true with any type of employment, separation or severance agreement -- they should contain short, easy language that even a bear who forgets to wear pants can understand. "People say nothing is impossible, but I do nothing every day!" While most of our employees are dedicated and hard-working, there are always a few exceptions who put a great deal of effort into doing nothing.  Think George Costanza.  The problems with these type of employees are many and include lost productivity and loss of morale among other employees who do not have the luxury of doing nothing all day.  So we need to make doing nothing all day impossible.  The caveat here is that nothing-doers tend to sue for discrimination when their reign of nothingness is put to an end.  To avoid such claims, or make them easily dismissible, ironically requires hard work on our part.  This means well-written (short easy words) counseling and disciplinary memos documenting the lack of performance and failure to follow specific directives. This played out in the interesting case of Sanzo v. Uniondale Union Free School District.  The plaintiff school custodian sued his former employer claiming that he was unlawfully terminated on the basis of his disability, narcolepsy, which caused him to occasionally fall asleep on the job.  The well-documented personnel file, however, demonstrated that discrimination was not at all at play.  The plaintiff was not fired because he fell asleep, but rather he was fired because he declined to do his job when he was awake. In the end, what Pooh is telling us is that some people will find it possible to do nothing at least until such time as someone with supervisory authority affirmatively makes it impossible. "You can't stay in your corner of the forest, waiting for others to come to you; you have to go to them sometimes." There are certainly days when sanity dictates that we stay in our own corner of the proverbial forest.  Staying too long, however, is like saying “open sesame” to the door of liability.  This often comes up in the context of workplace harassment and bullying investigations.  We’ve all gotten much better at the initial response to complaints and we conduct our investigations promptly and fairly.  The problem arises, however, when the harassment, if established, is not sufficiently severe to warrant terminating the alleged harasser so some other resolution is formulated (e.g., the harasser is separated from the complainant).  With such a remedial measure, our job is done, right?  Actually, the seeming completion of a workplace investigation is precisely not the time to retreat to our corner of the forest.  Rather, that is the time to periodically go out to see the complainant to make sure that no further harassment is taking place.  Our anti-harassment policies become viable defenses when they are not just initially followed but continually followed to stop any ongoing harassment.  Getting out of our corner of the forest means being proactive and being proactive defeats lawsuits. Although we all continue to get older and more experienced, the answers to many of our day-to-day problems nonetheless can still often be found in the pages of books long left unopened on our children’s bookshelves (or Kindles, I-Pads, etc.). Note:  All of the Pooh-isms in this blog article can be found in A.A. Milne's Winnie the Pooh and Pooh's Little Instruction Book.

Ahhh, Valentine’s Day, when love is all around.  But if one of Cupid’s arrows lands in your workplace, that warm and fuzzy feeling can quickly turn into headache and indigestion. In your approach to managing office romance, consider the following:

• A total ban on workplace romance may be a total disaster.  A blanket prohibition against co-workers dating each other may be legal, but it brings with it serious practical problems.  Love being what it is, an employer policy against romantic attraction has little chance of actually preventing it.  Add to this the morale problem of what may be viewed as a heavy-handed policy, and a total ban against dating may be more cure than needed.
• Consider a more tailored tact.  Another approach is to have a policy articulating a ban on some, but not all, romantic relationships.  For instance, a policy might prohibit employees in a direct reporting relationship from being romantically involved.  If appropriate for your company’s culture, the policy could provide that no person at a certain management level and above (perhaps a Director level) may be involved romantically with any other employee, regardless of reporting lines.   In some workplaces, a ban on relationships between employees in certain functions, such as those designed to be financial checks and balances on each other, may be appropriate.  Yet another approach is a policy that does not prohibit relationships in any specific context but states that the company may find a romantic relationship incompatible with its legitimate business interests, depending on the circumstances.  In any policy, leave open the possibility that the company may disapprove of romantic relationships in contexts beyond any specifically discussed, including where the company deems there to be a conflict of interest or a risk of financial fraud or collusion.
• Consider requiring disclosure of relationships.  It is generally a good idea to require that romantic relationships, or at least those where one person holds a supervisory role, be disclosed to higher management.  Often, it is not the existence of the relationship that creates the problem but the fact that higher management is not aware of the relationship until something -- a conflict of interest or a harassment allegation -- hits the proverbial fan.  A disclosure requirement is designed to avoid this.  An additional advantage of a disclosure requirement is that it provides another basis for adverse action against a non?disclosing manager:  the reason for discipline or even termination is not necessarily the fact of the relationship but the failure to be honest about it.
• Confirming that the relationship is consensual is often a good idea.  If, as a human resource professional, you become aware that employees are romantically involved, you should consider whether it is appropriate to confirm that the relationship is welcome.  If the relationship is between peers, this may be an unnecessary intrusion into private lives.  However, when the relationship involves employees of unequal power within the organization, it is critical.  This conversation need not be detailed or probing but only enough to ensure that the subordinate employee is comfortable with the situation and to inform him/her that, if that should ever change, he/she has a right to have the romantic attention stop immediately and to report it to human resources if it does not.  Find an appropriate way to document the conversation (which may be as simple as a confirming email or as formal as a letter signed by the employee, depending on the circumstance).
• Do not be shy about confronting inappropriate behavior.  An employer has an interest in ensuring that a relationship does not become a distraction or offensive to others.  If your company love birds are indiscreet, the company can and should require them to keep their behavior professional at work.
• Get legal advice before terminating or demoting.  Generally speaking, an employer acts lawfully when it demotes or even terminates an employee as a result of a consensual workplace relationship.  However, there are nuances.  If one gender tends to be fired or demoted by the employer when romances occur, the employer may be liable for gender discrimination.  And, an employee fired or demoted may have a sudden change of perspective and decide that the relationship was really harassment after all.  Other concerns arise if the relationship has soured and the employees are no longer able to work together.  A consultation with counsel is recommended to ensure that the company has fully accounted for any potential legal issues before taking action.

With that first real chill in the air, the holiday season is suddenly upon us.  For parents, it is a time to relive our childhood, watching with our children all of those holiday specials ranging from It's the Great Pumpkin, Charlie Brown to Santa Claus is Comin' to Town.  Unfortunately, for members of our misfit profession, “tis the season” is not so much about being jolly, but more about defending lawsuits. And speaking of lawsuits, a daily perusal of employment law blogs and periodicals reveals that there is no shortage of new and innovative ways to sue an employer.  The seemingly endless tide of profligate litigation makes me shiver like Linus in the Pumpkin Patch about what would happen if the Department of Labor, the EEOC, or the plaintiff’s bar set its sights on Santa and his manufacturing plant in the North Pole.  For this reason, I offer the following guidance to Mr. Kringle d/b/a Santa on how to clean up some glaring employment law violations.  (Disclaimer:  Our guidance to Mr. Kringle is not intended to be legal advice nor should it be a substitute for him retaining local counsel familiar with the laws in his local jurisdiction.  I would also include the obligatory tax advice disclaimer, but I believe Mr. Kringle is tax-exempt.) I will discuss individual lawsuits below.  However, my main concern in terms of liability is in the arena of the class action.  I say this with all due love and affection, “Mr. Kringle, your workshop is a treasure-trove of wage and hour violations.”  The elves work, quite obviously, more than 40 hours a week.  They work through meal periods and weekends and holidays.  Where is their overtime pay?  While efficiently furnished, I don’t see any punch clock for your employees.  Can we say liquidated damages and attorneys’ fees? Your workplace is also quite literally an accident waiting to happen.  The elves have no protective equipment.  There is an Abominable Snowman on the shop floor.  Can we all say, “OSHA”? Mr. Kringle, despite your big heart, your workplace is rife with harassment and discrimination.  For example, there is Rudolph’s red nose and the universally known harassment and bullying to which he has been subjected (“used to laugh and call him names”).  The un-remedied mocking of Rudolph makes for a great holiday gift for the plaintiff’s lawyer who signs up Rudolph and his “slam dunk” suit.  (We make no representations as to whether any plaintiffs-side lawyers are on the "Nice List" and worthy of such a gift).  I think it is imperative that all of your reindeer immediately receive anti-harassment training.  So too with poor Hermey.  The Seinfeldesque “Anti-Dentite” environment that you have condoned is ripe for litigation and is otherwise an insult to dentists world-wide.  That leads us to our Faragher defenses.  Are your EEO policies translated into “Elfish” and properly distributed with a clear record of same? Of additional concern, have you taken care to make sure that the post-toy delivery workplace celebration does not cross the proverbial “line” of appropriateness and result in more than just hangovers at the workshop the next day? Finally, we need a word about the Island of Misfit Toys.  Notwithstanding that the public may want all lawyers permanently deposited in this desolate place, it is nonetheless illegal to segregate your workforce on the basis of such protected characteristics as being a cowboy who rides an ostrich.  And, who among us wouldn’t want to ride an ostrich? Of course, Mr. Kringle is not the only one staring down the barrel at punitive damages.  Yes, I’m talking to you, Mr. Burgermeister Meisterburger.  Making toys is plainly a recreational activity under state labor laws and interfering with concerted activity in this regard will get you an unfriendly knock on the door from the NLRB. So, to our clients and blog subscribers, I wish you all a joyous holiday season in front of a warm fire surrounded by friends and family, without any visions of EEOC complaints or Department of Labor audits dancing in your heads.

The Second Circuit’s recent decision in Moll v. Telesector Resources Group, Inc. is a good reminder to employers that a sexually hostile work environment claim can be based on more than just sexually explicit or sexually offensive statements and conduct.  Such a claim can also be established by facially sex-neutral statements and conduct under certain circumstances. Cindy Moll, the plaintiff in that case, was employed as a Systems Analyst for Verizon from 1997 until 2002.  Ms. Moll alleged that she was subjected to a sexually hostile work environment because her supervisor had done such sexually offensive things as:  leave her three “inappropriate” notes in 1998-1999; repeatedly ask her to come to his hotel room while they were on a business trip in 1999; and leave her a note in 2001 that said he thought about her when he was taking a shower.  She also claimed, however, that other facially sex-neutral conduct engaged in by her supervisor also contributed to the sexually hostile work environment that she experienced.  For example, Ms. Moll alleged that her supervisor:  required her to communicate with him only in person, as opposed to by phone or email; told her she could not be assessed for a promotion because of an alleged promotion freeze, even though two of Ms. Moll’s male colleagues were promoted during the alleged freeze; put Ms. Moll on a job performance improvement plan in 2002; told her she could no longer work from home in 2002, even though other male employees were allowed to do so; denied Ms. Moll’s request to take vacation in 2002, even though the same requests from her less senior male colleagues were granted; and excluded her from work-related social events, including attending professional hockey games. In September 2003, Ms. Moll filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) regarding, among other things, the above conduct that she alleged constituted an unlawful sexually hostile work environment under Title VII of the Civil Rights Act (“Title VII”).  She subsequently filed a lawsuit in the U.S. District Court for the Western District of New York. In response to Ms. Moll’s complaint, Verizon made a motion to dismiss her hostile work environment claim because, it argued, no sexually offensive conduct was alleged to have occurred within the applicable statute of limitations period.  In New York, a plaintiff is generally required to file a charge of discrimination with the EEOC within 300 days of the alleged unlawful conduct.  When a hostile work environment claim is alleged, at least one incident of harassment must be shown to have occurred within the 300 days prior to filing with the EEOC.  Verizon argued that because the last incident of sexually offensive conduct (i.e., the supervisor’s note in 2001) occurred more than 300 days before Ms. Moll’s charge was filed with the EEOC, her hostile work environment claim was untimely and should be dismissed. The District Court agreed with Verizon and dismissed the plaintiff’s hostile work environment claim.  Ms. Moll then appealed the dismissal of her claim to the Second Circuit Court of Appeals. The Second Circuit reversed, holding that the District Court had improperly failed to consider all of Ms. Moll’s allegations in their totality, particularly the alleged conduct that was not sexually offensive in nature.  The Second Circuit determined that, based on Ms. Moll’s allegations, a reasonable fact-finder could have found the alleged facially sex-neutral conduct was sex-based and therefore contributed to the sexually hostile work environment.  As the Second Circuit explained:

To decide whether the threshold has been reached, courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse. . . .  Facially sex-neutral incidents may be included . . . among the “totality of the circumstances” that courts consider in any hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on sex.

The Second Circuit reversed the dismissal of Ms. Moll’s hostile work environment claim because the District Court did not consider whether the sex-neutral conduct alleged by Ms. Moll occurred within the applicable statute of limitations period. The Moll decision serves as a good reminder of what must be considered by employers faced with an internal complaint from an employee that he/she is experiencing a sexually hostile work environment.  Even if the sexually explicit statements and sexually offensive conduct about which the employee complains occurred in the distant past, the employer must still review the totality of the circumstances, including all facially sex-neutral statements and conduct alleged by the employee, to determine whether a sexually hostile work environment exists.  If so, the employer must act promptly and decisively to remedy the situation, or else face potential liability.