The Equal Employment Opportunity Commission (EEOC) is the federal agency that can and will investigate sexual harassment allegations, along with other discriminatory allegations made against an organization, supervisors, managers or employees.   An individual can file a complaint with the EEOC anytime within 300 days from the alleged sexual harassment or discriminatory allegation, as defined by the federal law.  As outlined in the NYS Sexual Harassment training slides, the individual does not need an attorney to file and the individual must file the complaint with the EEOC prior to filing in federal court.  What does the EEOC look for in a sexual harassment allegation against an organization or the employees in the organization?  How have they defined severe and pervasive?  Can this change?  Yes, and it can change quick during the #MeToo environment. 

Convincing a fact-finder:

  1. Severe or Pervasive: enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
  • Unwelcomed: individual has to prove to the fact-finder the conduct was unwarranted and unwelcome.
  • Rendered the plaintiff’s working environment both objectively and subjectively hostile/abusive.

Courts Defining Severe or Pervasive:

  • The level of offensiveness of the unwelcomed speech or conduct.
  • The frequency of occurrence of such conduct or speech.
  • Length of time over which the alleged harassment occurred.
  • The context in which the challenged conduct occurred.

EEOC Sexual Harassment Website

NYS Division of Human Rights (DHR)

A complaint alleging violation of the Human Rights Law may be filed either with DHR or in NYS Supreme Court.  Complaints may be filed with DHR any time within one year of the alleged sexual harassment, no attorney needed to file.  Filing in the NYS Supreme Court can occur any time within three years.

“Although the Human Rights Law applies generally to employers with four or more employees, the sexual harassment provisions apply to ALL employers in New York State, regardless of the number of employees. Sexual Harassment in the Workplace Sexually harassing conduct can consist of unwanted verbal or physical sexual advances, sexually explicit statements, or discriminatory remarks that are off­ensive or objectionable to the recipient.

Examples include:

  • Requests for sexual favors, which may be accompanied by implied or overt threats concerning one’s job performance evaluation or promotion.
  • Subtle or obvious pressure for unwelcome sexual activities.
  • Verbal harassment or abuse in the form of a pattern of sexual comments or questions.
  • Unnecessary or inappropriate physical contact.
  • Displays of lewd photographs or drawings.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute unlawful sexual harassment when:

  • Submission to such conduct is made (either explicitly or implicitly) a term or condition of employment;
  • Submission to, or rejection, of such conduct is used as a basis for decisions aff­ecting one’s employment; or
  • Such conduct has the purpose or e­ffect of interfering with an individual’s work performance, or creating an intimidating, hostile or o­ffensive working environment.”[i]

NYS Sexual Harassment Information Link

Potential Future Changes in NYS:

A bill has been introduced in the NYS Legislature that would add language to the Human Rights Law which includes; “Harassment is not limited only to those actions that are severe or pervasive.”  The law currently reads, “Harassment includes the types of actions that have been found by the courts to create a hostile environment or a tangible job detriment.  Such actions are an unlawful discriminatory practice when they result in a person or persons being treated not as well as others because of a protected characteristic.  Harassment does not include what a reasonable person with the same protected characteristic would consider petty slights or trivial inconveniences.” A broad expansion to the law has the potential of expanding what harassment and sexual harassment how the state and court system define workplace harassment.  Continue to monitor for any changes and updates to this legislation, it will impact all organizations throughout the state. 

*This can include retaliation on other protected categories under Title VII

[i] https://dhr.ny.gov/sites/default/files/pdf/sexual-harassment.pdf

Published by Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered MCIPD ABOUT: Matthew Burr has over 17-years of experience working in the human resources field, starting his career as an Industrial Relations Intern at Kennedy Valve Manufacturing to most recently founding and managing a human resource consulting company; Burr Consulting, LLC, Talentscape, LLC and Co-Owner of Labor Love, a Labor, and Employment Law poster printing company. Prior to founding the consulting firm, the majority of his career was heavy industry manufacturing and healthcare. He specializes in compliance auditing, training labor and employment law, conflict resolution, performance management, labor, and employment relations. Matthew has a generalist background in HR and operations, while providing strategic HR and operational solutions to his clients, focusing on small and medium sized organizations. He works as an Adjunct at Alfred State University, Tompkins Cortland Community College, and Montgomery Community College. He successfully designed an HR Concentration in the business management major that aligned with both SHRM and HRCI certifications, providing opportunities for students to sit for both the SHRM-CP and aPHR certifications upon completion of the degree, concentration, and internship hours as an Assistant Professor of Management at Elmira College (Retired January 2022). Matthew is also the SHRM Certification Exam Instructor, with a current pass rate of 92% on the SHRM-SCP and 83% pass rate on the SHRM-CP and a combined 88% on both exams over a 7-year period of instructing the course (Elmira College, Collin College & The College of St. Rose). Matthew works as a trainer Tompkins Cortland Community College, Corning Community College, Broome Community College, and HR Instructor for Certification Preparation for the Human Resource Certification Institute (HRCI). He also acts as an On-Call Mediator and Factfinder through the Public Employment Relations Board in New York State, working with public sector employers and labor unions. PUBLICATIONS: Matthew has publications at the American Bar Association (ABA) Experience Magazine, Cornell HR Review, Business Insider, New York State Bar Association (NYSBA), PayScale, Society of Human Resource Management (SHRM), and Expert 360 (in Australia). In early 2017, he published his first book, “$74,000 in 24 Months: How I killed my student loans (and you can too!),” proceeded by his second book, which was published in January 2021, “Slay the Student Loan Dragon: Tips and Tricks on How to Conquer the Student Loan Game” and his most recent book, “Unbox Your HR Career” in July 2023. VOLUNTEER WORK: Matthew is currently the New York State Society of Human Resource Management (NYSSHRM) District-Director. EDUCATION & TRAINING: Additional Training & Development:  SHRM Workplace Coaching and Mentoring Recertification Program, 2020  SHRM Foundation Employing Abilities @Work Certificate, 2020  SHRM Foundation Veterans at Work Certificate Program, 2018  Delta County Chamber of Commerce: Delta Force Leadership Program, 2013 FEATURED IN & ON: Matthew was featured on CNN Money, Fast Company, Fits Small Business, Fox News, Magnify Money, Monster.com, My Twin Tiers, Namely, Student Loan Hero, Smart Sheet and CEO Blog Nation, Human Resource Certification Institute (HRCI), Society of Human Resource Management (SHRM).

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