In response to the growing #MeToo movement against workplace sexual harassment, New York legislators recently expanded the protections of the state's human rights law to cover individuals who are not legally classified as employees. Specifically, the recently adopted state budget includes language that provides that an employer is liable if it permits, or allows of any its agents to permit, the sexual harassment of a “non-employee,” such as an independent contractor, vendor, consultant, or any other person who offers contractual services to the employer.
Sexual Assault Survivor's Fox Lawsuit Runs into Trouble Over “Employee” Status
This is an important change because many victims of sexual harassment are not traditional employees. Under traditional principles of employment discrimination law, anyone who is not defined as an “employee” cannot pursue a claim, no matter how egregious the employer's conduct might be. Indeed, many of the accusers involved in recent high-profile #MeToo cases fall within the category of “independent contractors” and are thus fighting an uphill battle to find justice.
For example, last year we discussed a lawsuit against 21st Century Fox brought by a former on-air contributor to Fox News Channel. The plaintiff alleged that an on-air host “sexually assaulted and raped” her, and then coerced her into a romantic relationship in exchange for continuing to receive appearances on Fox News.
The plaintiff further alleged that Fox News management “blacklisted” her from further appearances after she complained about the host's actions. The plaintiff's subsequent lawsuit contained a wide range of allegations under federal, state, and city civil rights laws. On April 24 of this year, the judge overseeing the case dismissed some of the plaintiff's allegations outright, but allowed others to proceed to discovery.
Of note here, the judge said the plaintiff could not maintain her claims based on “employment discrimination and retaliation” because she was never a Fox employee. The judge noted that the plaintiff was never paid for her numerous on-air appearances. Under Title VII of the Civil Rights Act of 1964, at least as interpreted by courts in New York, an “employee” is someone who receives “remuneration in some form for her work.” While remuneration is not limited to salary or wages, it must still include “substantial benefits not merely incidental to the activity performed.” In this case, the judge said the plaintiff could not demonstrate that she received any numeration as defined by this standard.
However, the judge went on to say that the plaintiff could proceed with her “failure to hire” claim against Fox based on the company's purported failure to offer her a full-time contributor's position. The judge noted that Fox “used the lure of a full-time contributorship as a carrot and a stick to secure [the plaintiff's] continued appearances,” and that the company clearly “treated her as a qualified candidate” before deciding not to hire her, ostensibly, as the plaintiff alleges, because she decided to report her sexual assault.
Speaking Up Against Sexual Harassment in New York
Cases like the one above illustrate why New York legislators felt the need to expand the scope of individuals entitled to protection under New York State law. If you have suffered due to any kind of sexual harassment in the workplace and need advice on how to proceed from an experienced New York employment law attorney, contact the Law Offices of White, Nisar & Hilferty, LLP, today.