Sexual Harassment Explained

It is not unusual in for those alleging the misconduct to be cast in a David-and-Goliath scenario, according to Karen Zdanis, a lawyer specializing in employment law with offices in Nanuet and White Plains. In this complicated area of the law, people are often unsure of their rights or how to respond to the situation. 

Leading up to tonight's member meeting at the Tarrytown Volunteer Ambulance Corps which is grappling with numerous allegations against a member, Patch sat down with Zdanis to get some answers.

1. What constitutes sexual harassment? 

KZ: Unwanted behavior of a sexual nature that rises to the level of creating a hostile work environment in the workplace is illegal. Federal and state discrimination laws have been interpreted by the courts to apply to both women and men. Charges are more commonly brought by women, but courts saw cases where men were harassed, and decided that it could apply to men as well. In these cases, it is known as reverse discrimination.

Common examples of sexual harassment include pornography in the workplace, especially when employees have to work on a shared computer and pornography just pops-up, supervisors showing sexual photos on a cell phone, unwelcome touching and hugging, comments about women’s bodies, sexual jokes, and unwanted advances. One claimant I represented said that the person harassing them was forcing them to go out to lunch and asking them on dates outside of work. When sexual favors become required for a person to continue working there – it becomes sexual harassment.  

2. What should a person do if they feel they are being sexually harassed?

KZ: The first thing you have to do is to tell the person to stop, that you don’t like it. You have a duty to tell the person that you don’t like it. This is because the first key thing to defining sexual harassment is that the action is unwelcome. Next you have to tell your employer.  

It is equally important how the employer handles the compliant. They should treat it seriously and conduct an investigation by handing it over to someone removed from the individuals at issue. These individuals should be trained. There are courses on sex harassment investigation. 

Mid-size or large companies usually have an employee handbook that includes a sexual harassment policy. You should follow that policy.

If the employer fails to remedy the situation, you should see a lawyer. The police department is not necessarily the right place to go, unless the incident rises to the level of assault. Police departments are not equipped to handle noncriminal complaints.

As a lawyer I see people from all sides. If they are not getting attention despite reporting it, then I would deal with it on a case by case basis. This is a complicated area of the law because it of often depends on the circumstances and how serious the offensive behavior is. An attorney can best determine if the conduct rises to the level of a legal claim.

3. Doesn’t this boil down to a “he said/she said,” type of case?

KZ: There is often not a lot of documentation in sexual harassment cases.  However, the courts consider the totality of the circumstances – every action, every offensive comment, and every joke, pervasiveness of the jokes and actions as well as the offensiveness of them. It’s decided on a case by case basis, and because of that it's somewhat subjective. However I advise people to keep a journal with detailed information on instances of sexual harassment. Note the dates and conversations. Photograph or keep copies of any offensive material and note what other people witnessed any act of sexual harassment. 

4.  What agencies handle sexual harassment claims? Is a lawyer required to file a claim?

KZ: An individual can absolutely file a complaint on their own without an attorney. Complaints can be filed with the Westchester Commission on Human Rights, the New York State Division of Human Rights, the New York City Commission on Human Rights and the Equal Employment Opportunity Commission.

5. Does the law protect volunteers such as those who are alleging sexual harassment at the Tarrytown Volunteer Ambulance Corps?

KZ: With a volunteer it may have to fit under a different subsection of the law. It depends in part on whether the volunteer derived any financial benefit (i.e. was entitled to a pension) or was paid in any capacity. The human rights law is designed to protect paid employees in an employment setting. However, there is a specific law that protects members of fire departments from sexual harassment.

6. What penalties can the courts impose for sexual harassment?

KZ: If the complainant has been fired, the courts can order that person be reinstated. Back pay with interest is possible. Monetary damages for mental anguish, pain and suffering is also possible. In some agency settings (and under federal law) recovery of attorneys' fees is possible. And as of 2009, the state is imposing fines and penalties between $50,000 and $100,000 if the employer or entity is found guilty and it can be proved that the employer or individual acted with malice or reckless indifference.