Discrimination Based on Sex
Discrimination based on sex is prohibited: it is unlawful for an employer to mistreat an employee due to that person’s gender, imputed gender, sexual orientation or because the person is a transgender individual.
Discrimination based on sex often takes form of a hostile work environment or disparate treatment. The harasser can be either a man or woman, and the harasser and the victim may be of the same sex.
In order to demonstrate a hostile work environment, a plaintiff must establish: "(1) that the harassment was 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' and (2) that a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002).
The inquiry has objective and subjective elements: "'the misconduct must be "severe or pervasive enough to create an objectively hostile or abusive work environment," and the victim must also subjectively perceive that environment to be abusive.'" Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (quoting Alfano, 294 F.3d at 374).
To determine whether an environment is sufficiently hostile the court will take into consideration such factors as frequency of the discriminatory conduct, its severity, and whether it humiliates or physically threatens an employee or unreasonably interferes with an employee's work performance are used. “As a general rule, incidents must be more than 'episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.”
However, if the comments are infrequent, but offensive and clearly target person because of his/her sex, such conduct might be considered hostile as well.
The employer must prevent harassment at work by educating and training its staff and by providing adequate measures in case of a complaint. Interestingly, New York City laws impose strict liability on an employer in case an employee’s claim of harassment was sustained by the court. The defense that an employer undertook measures to prevent harassment/remedy the situation does not apply to sexual harassment and retaliation claims under section 8-107 of the New York City Administrative Code. Zakrzewska v. New Sch., 620 F.3d 168, 169, 2010 U.S. App. LEXIS 12734, *1, 109 Fair Empl. Prac. Cas. (BNA) 1019 (2d Cir. N.Y. 2010).
Disparate treatment occurs when employer treats persons of different sex differently, or when an employer’s policy or practice has a disparate effect on different sexes… For example: an employer favors male salesmen opposed to female salesmen in customer assignments.