Sex Assault in the Workplace

Hostile Work Environment Claims After Sexual Assault

A hostile work environment claim is one of the most common ways sexual misconduct is framed in employment litigation. Historically, courts required conduct to be "severe or pervasive" before it created a hostile work environment. A single act of sexual assault has long been recognized as severe enough to meet that standard, but recent statutory changes in New York have lowered the bar considerably.

The traditional federal standard

Under Title VII, a hostile work environment claim requires that the conduct be sufficiently severe or pervasive to alter the terms and conditions of employment. Courts evaluate this by considering the frequency, severity, physical nature, and impact of the conduct. A single act of sexual assault typically qualifies because of its inherent severity. Courts have consistently held that unwanted sexual touching, particularly by a supervisor, is sufficient on its own.

The New York State standard

The 2019 amendments to the New York State Human Rights Law eliminated the severe-or-pervasive standard. Under current New York law, harassment need only rise above petty slights or trivial inconveniences to be actionable. This is a significantly lower threshold and makes many claims viable in New York state court that would face challenges under Title VII.

The New York City standard

The New York City Human Rights Law is even more protective. Under the NYCHRL, an employee need only show that they were treated less well because of a protected characteristic. This standard applies fully to sexual harassment and assault claims and is one of the reasons New York City employees often choose to bring claims under city law rather than federal law.

The New Jersey standard

Under the New Jersey Law Against Discrimination, courts continue to apply the "severe or pervasive" formulation but have long recognized that a single serious act of harassment can satisfy that standard. New Jersey courts also give substantial weight to the totality of the circumstances, including whether the conduct involved physical contact, whether it came from a supervisor, and whether it was part of a broader pattern.

Employer liability

Once the conduct is established as creating a hostile work environment, the analysis turns to the employer's liability. Liability standards differ based on whether the perpetrator was a supervisor or a coworker, and on whether the employer had actual or constructive notice. See our related posts on supervisor and coworker liability for more detail.

Damages

Hostile work environment claims can recover economic damages, emotional distress damages, punitive damages, and attorneys' fees. Under New York state and city law, there are no caps on compensatory damages. Under Title VII, damages are capped based on employer size, which can be an important consideration when deciding under which law to bring the claim.

Building the claim

A strong hostile work environment claim combines evidence of the underlying misconduct with evidence of its impact and evidence of the employer's response, or lack of response. Testimony from the employee, medical and mental health providers, coworkers, and, where available, records of prior similar complaints all contribute to a well-supported case.

At John J. Zidziunas & Associates, LLC, our employment lawyers represent workers subjected to sexual assault and harassment across New York and New Jersey. To discuss your situation confidentially, call us at (212) 516-1868 or contact us here. We represent employees on a contingency fee basis with free consultations.

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