"Sexual harassment" is conduct or behavior which either affects, or could be viewed as affecting employment, continued employment, salary, evaluation, advancement or another employment decision, or which has the effect of producing an intimidating or offensive work environment for someone, or interferes with his or her ability to perform his or her job. This could include unwelcome sexual overtures, verbal comments, overt displays of affection, physical contact, sexually oriented material, or gender-based jokes or stereotypes, displays of nudity in the workplace, photos or printed material which others might find offensive or degrading.

Can a male be the subject of sexual harassment?

Anyone, male or female, can be the subject of sexual harassment. The harasser need not be of the opposite sex for the claim to be recognized.

Is an employer responsible for sexual harassment by persons other than its employees?

An employer can be responsible for the conduct of other persons besides its employees if such conduct affects the employees. For example, if an employee reported harassment by a customer or client to the employer, the employer would be obligated to act to bring that harassment to an end.

What laws currently protect against sexual harassment?

Protections against sexual harassment currently exist in federal, state and local law and the "common law", which is the law made by historical decisions of the courts. Sexual harassment is considered by the courts to be a form of discrimination based upon gender. On the federal level, the Civil Rights Act of 1964 and its amendments, collectively known as "Title VII", protects against discrimination based upon sex in companies where there are at least 15 employees. The Federal Equal Pay Act also protects against discrimination based upon gender. On the state level, employees in companies of four or more persons are protected from sex-based discrimination by the New York Human Rights Law, beginning at Section 290 et seq. of the Executive Law. Some municipalities such as New York City have their own local laws on the books. In addition, in appropriate cases, someone may be able to bring a claim in New York on common law grounds, such as assault, battery, negligent hiring, negligent supervision, breach of employment contract or other theories.

What remedy would a court give me if I have been sexually harassed?

If you prove a claim of sexual harassment, the laws provide a number of different remedies. Depending upon which theory your claim is based, remedies could include requiring the company to rehire you or promote you if you were wrongfully terminated or denied promotion; ordering that the harassing conduct stop; awarding the employee lost pay and benefits; awarding other money damages such as for psychological harm; awarding attorney's fees spent by the employee in bringing the claim or lawsuit; and in appropriate cases, an employer may be required to pay "punitive damages" for conduct that is viewed as especially willful or harmful.

What if an employee feels he or she is being sexually harassed?

It is in the best interests of both the employer and the employee that the complaint be reported to the employer. An employer may (and should) have a policy in place on what to do when such claims arise. An employee may feel most comfortable going to an immediate supervisor, but alternate persons should also be available. Any policy should include direction to the employee on how to make a complaint and with whom to make the complaint. Although it may be difficult for an employee to make a complaint, it is important to do so. The complaint gives the employer knowledge and an opportunity to address the problem for the benefit of all employees. Making a complaint also protects the employee, because it gives him or her a basis for proving in court, if necessary, that a situation involving sexual harassment occurred, and the employer was advised.

What action should an employer take if a complaint of sexual harassment is received?

Management should treat each complaint seriously, and ensure that it is investigated immediately and carefully. To the extent possible, confidentiality must be maintained in investigating complaints. However, it would not usually be possible for an employer to promise complete confidentiality. In order to conduct a thorough investigation it will often be necessary for other employees to be involved either as participants in the investigation or as potential witnesses. When an employee complains, management has a duty to investigate, whether the complaining employee desires an investigation or not.

What type of corrective action might an employer take if it is determined that sexual harassment did occur?

The law imposes a duty upon an employer to take all steps reasonably necessary to end the harassment. The employer's actions must be actually designed to put a stop to the harassment rather than simply to appease the complaining party. The employer would also have a duty to see that the employee is not retaliated against for making the complaint.

If I try but am unable to resolve my complaint of sexual harassment directly with my employer, what can I do?

The law permits employees to file claims against the employer in different ways, depending upon the type of complaint. The employee may have options on where to file the complaint, and whether a private lawsuit can be brought. It may be necessary to file a complaint with an administrative agency such as the Equal Employment Opportunity Commission, before filing suit. There are different procedures which must be filed depending upon which law will be enforced. Counsel knowledgeable in employment law should be consulted promptly to protect your rights.

What assistance can an attorney give me in these matters, as an employee and as employer?

For an employee, it is important to consult with an attorney experienced in employment litigation as early as possible in the process. You may wish to seek advice before filing a sexual harassment complaint with your employer. Once a complaint is filed, even informally, it is important to seek legal advice to assist you in understanding your rights. When and if a claim reaches the stage that a formal complaint or claim is to be filed, it is important to consult counsel to protect the employee's rights, since there are strict time frames as to when lawsuits and administrative complaints can be filed. Failure to follow the rules may result in the employee never being able to file a claim. An attorney knowledgeable in employment litigation can best help you in understanding your rights and recommending the appropriate course of action in your case.