Filing a Sexual Harassment Complaint in New York

[Tuckner, Sipser, Weinstock & Sipser, LLP is an employment and labor law firm located in NYC and the Mid-Hudson Valley, with a concentrated practice advancing women’s rights in the workplace, including gender pay disparity, sexual harassment and pregnancy discrimination.]

 

By Jack Tuckner

 

Employees in the state of New York have several avenues for filing a sexual harassment complaint. First, an employee must determine whether the facts of their situation rise to the level of sexual harassment, as a civil rights violation. The general definition of sexual harassment, according to the Equal Employment Opportunity Commission (EEOC), is that it includes “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”

 

The sexual harassment victim can be either a woman or a man, and she or he does not have to be of the opposite sex to the harasser, nor does sexual harassment always need to be of a sexual nature, as it may also involve offensive remarks about a person’s gender. So, harassing an individual by making offensive comments about his or her sex can constitute sexual harassment, too. Additionally, when relatively minor offensive comments are made on a continuing basis, a “hostile work environment” based on sex (sexual harassment is a type of sex discrimination) can arise. Additional EEOC regulations and guidance on sexual harassment can be viewed here.

 

Harassment Complaints for Federal Employees in New York

For federal employees in NY, the usual method of filing an Equal Employment Opportunity (EEO) complaint alleging sexual harassment is to go through the employee’s particular federal agency’s EEO office within 45 days of the date of the harassment. This brief deadline can usually be satisfied by initiating contact directly with a federal EEO counselor. Federal agencies will provide contact information for federal EEO complaint counselors to federal employees (or federal employee applicants). The formal complaint process involving a sexual harassment claim will follow if the matter is not swiftly resolved. There are also other less recommended routes for filing a federal employee sexual harassment complaint, such as filing a grievance or complaint (where and when permitted) though the Office of Special Counsel (OSC), but these are usually not as effective compared to a federal employee’s options for filing an EEO complaint.

 

Harassment Complaints for Private Sector Employees in New York

For employees who are employed by private companies in New York, there are several potential options for filing a sexual harassment complaint depending on where they work and the size of their employer. A private sector employee employed by a company with 15 or more employees may file a complaint with the EEOC, which is the most common initial route for those employed by private companies. The deadline for covered employees wishing to file a charge of discrimination with the EEOC must do so within 300 days of the last discriminatory act, which is typically the date of the employee’s termination. Filing a charge of discrimination with the EEOC is a condition precedent—a.k.a., a prerequisite—to filing a lawsuit in federal court, which, by the way, must be done within 90 days of the employee’s receipt of her “notice of right to sue” from the EEOC, once it concludes the investigation into the discrimination charge.

 

A private sector employee who works in New York may also file a sexual harassment complaint with the State Division of Human Rights (SDHR) even if their employer has only 1 (one) employee (as opposed to the federal law’s 15 (fifteen) employee minimum requirement).

 

The SDHR has offices throughout the state, in the cities of Albany, Binghamton, Brooklyn, Buffalo, Manhattan, Long Island, Syracuse, Rochester, and Peekskill. Contact their main office in New York City at (718) 741-8400, or write to them at New York State Division of Human Rights, One Fordham Plaza, Bronx New York 10458; or visit their website at www.dhr.ny.gov

 

Alternatively, a private sector employee who works in the five boroughs that comprise New York City may file a sexual harassment complaint with the New York City Commission on Human Rights (CCHR), so long as the employer has at least 4 (four) employees. The CCHR is charged with enforcing the New York City Human Rights Law, which prohibits sexual harassment in the workplace. Call or visit the Law Enforcement Bureau of the NYC Commission on Human Rights, 22 Reade St, New York, NY 10007, by phone at 311 or (212) 306-7450; or website at www.nyc.gov/html/cchr/html/home/home.shtml

 

The statute of limitations for filing with either the NYSDHR or the NYCCHR is 1 (one) year from last discriminatory act, usually the employee’s firing.

Office of NYS Attorney General Civil Rights Bureau

The Civil Rights Bureau determines whether the employee’s experiences are evidence of a “pattern, practice or policy” of sexual harassment affecting a significant number of people. The Bureau may then commence an investigation and/or initiate legal action against the employer. The Attorney General does not represent the individual making the complaint but the ‘People of the State of New York,’ so filing a complaint with the Attorney General is not a substitute for bringing a case in court or filing a complaint with the proper agency, and it does not toll (suspend) any of the filing deadlines or other administrative prerequisites for filing a case in court or with other government agencies.

Contact the Civil Rights Bureau at Civil Right Bureau, New York State Attorney General’s Office, 120 Broadway, New York, NY 10271; by phone (212) 416-8250 or (800) 771-7755; or email at [email protected]ag.ny.gov

New York State Department of Labor

The Division of Equal Opportunity Development under the New York State Department of Labor, among other duties, ensures there is no discrimination in Labor Department policies and practices and enforces Executive Order No. 19 and the Workforce Investment Act of 1998, which prohibits discrimination on the basis of sex, which includes sexual harassment. The agency oversees, among other complaints, discrimination and sexual harassment complaints for employees who got their jobs through the NYS Department of Labor program, or a service provided by a New York State Career Center. Those who did not get their jobs through these sources, should make their complaints with the EEOC, the SDHR, or the CCHR. A complaint must be filed within 180 days of which the discrimination took place.

It has offices located in Albany, Buffalo, and New York City. Contact NYSDOL for the appropriate office to file a complaint at (518) 457-9000.

If the harassment involves physical touching, coerced physical confinement, or nonconsensual sex acts, the conduct may constitute a crime. Contact your local police precinct.

Last but certainly not least, an employee may start a lawsuit and seek a jury trial in NY State Supreme Court under either the NYSSHRL or the NYCHRL, so long as the lawsuit is commenced within 3 (three) years of the last discriminatory act.  In sum, it is important to determine the correct forum and to file a claim well in advance of any deadlines.

 

Talk to an Attorney to Determine the Best Forum and Strategy

It is vitally important to speak with an attorney before choosing to file a sexual harassment complaint, since the correct forum for filing complaints can vary widely based on the facts of the claim, the location and size of the employer, the nature of the employee’s harms, losses and expectations, and the nature of the employer’s business. If you need assistance with considering and/or filing a sexual harassment complaint, please contact us at (212) 766-9100 or (845) 201-0200, or at www.womensrightsny.com  to schedule a no charge consultation.