Donald Trump, Sexual Harassment, and the Workplace

Donald J. Trump’s election is likely to be a major topic of discussion among many people, particularly at work.

The topic of sex – including sexual harassment and sexual assault – has, one could say, dominated this election. While sex is no stranger to politics (see, e.g., Clinton/Lewinsky) this time seems … different.

Examples include Mr. Trump’s recorded comments referring to grabbing women by the p*ssy; Trump and his son’s tone-deaf comments about Ivanka Trump’s reaction/susceptibility to sexual harassment; the lawsuit accusing Mr. Trump of raping a teenage girl; sexual harassment allegations against Mr. Trump; and Anthony Weiner.

Given all this, it is possible that politically-related sexual talk at work will occur. Might such discussions “cross the line” and become actionable “hostile work environment” sexual harassment? (This discussion will be limited to hostile work environment, as opposed to “quid pro quo“, sexual harassment.)

Here is a summary of federal and New York state sexual harassment law, taken from a recent federal district court decision:

To state a prima facie case of sexual harassment based on a hostile work environment, the plaintiff must establish: (1) that she is a member of a protected group; (2) that she was the subject of unwelcome advances; (3) that the harassment was based upon her sex; and (4) that the harassment affected a term, condition or privilege of employment. … [F]or sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive environment. This standard necessitates both an objective and subjective inquiry as the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive. In determining whether an environment is hostile, the Court examines all of the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. While one single act can transform the plaintiff’s employment, [i]solated acts, unless very serious, do not meet the threshold of severity or pervasiveness.

The standard under the New York City Human Rights Law is broader, and requires a plaintiff to prove only that “she has been treated less well than other employees because of her gender.” Williams v. NYC Housing Authority (1st Dept 2009).

Courts weigh one factor – sexually inappropriate touching – heavily. See, e.g., Redd v. NY Div. of Parole (2d Cir. 2012) (“[D]irect contact with an intimate body part constitutes one of the most severe forms of sexual harassment”); Gonzalez v. City of N.Y. (EDNY 2015) (“[a] single incident of contact with an intimate body part is sufficient to establish a hostile work environment claim.”).

As in any case, all of the facts must be carefully considered and analyzed. If you think that your boss, co-worker, or anyone else at work has “crossed the line” – in connection with a political discussion or otherwise – contact us at (212) 227-2100 today to discuss your legal rights.

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