Sexual Harassment Law for Tipped, Retail, Hospitality and Domestic Workers in New York

Sexual harassment law reaches restaurants, shops, hotels and private homes. The New York State Human Rights Law (NYSHRL) covers all employers within the state, with no minimum number of employees.⁠^[1] New York State's guidance says harassment by customers and clients is covered by the NYSHRL, and domestic workers have been employees under the NYSHRL since December 31, 2021.⁠^[2][3] Federal law and the New York City Human Rights Law (NYCHRL) have their own coverage rules, set out below.

What changes in these workplaces is the setting: customers who are not employees, income that depends on tips, very small employers, high turnover and people working in someone else's home.

Does the size of my employer matter?

It depends on which law you are asking about.

Layer	Which employers are covered for a sexual harassment claim
Federal (Title VII)	Only an employer with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.⁠[6]
New York State (NYSHRL)	All employers within the state.⁠[1]
New York City (NYCHRL)	For most employment provisions, the term "employer" leaves out one that had fewer than four persons in its employ at all times from twelve months before the practice began through its end. A claim of gender-based harassment is different: it can be brought against any employer, including one with fewer than four.⁠[7][4]

The NYSHRL has one narrow exclusion that matters for family businesses and households: the term "employee" does not include an individual employed by his or her parents, spouse or child.⁠^[8] The guides on which employers are covered and on harassment at small businesses cover the counting rules.

What if the harasser is a customer?

New York State's model sexual harassment policy addresses service work directly. Its examples of sexual harassment include "sexual advances/pressure placed on a service industry employee by customers or clients, especially those industries where hospitality and tips are essential to the customer/employee relationship."⁠^[9] The same policy says harassers can be anyone in the workplace, including a client, customer, patient or visitor.⁠^[10]

The State's guidance then says what is expected when it happens. Harassment by a third party, including customers, clients or anyone else being served by an employee, is covered under the NYSHRL; an employee experiencing it can report the behavior to a manager; and a manager who witnesses it is obligated to accommodate the needs of the employee, "including reassigning the employee away from the harassing customer or requesting the customer leave."⁠^[2]

The rule under federal law is stated in an EEOC regulation. An employer may be responsible for sexual harassment of its employees by non-employees in the workplace where the employer, or its agents or supervisory employees, knows or should have known of the conduct and fails to take immediate and appropriate corrective action; the EEOC considers the extent of the employer's control over the non-employee.⁠^[11] The U.S. Court of Appeals for the Second Circuit, the federal appeals court that covers New York, has adopted the EEOC's rule, applying to non-employees the same standard it uses for non-supervisory coworkers.⁠^[12]

A common mix-up. New York Executive Law § 296-d is often described as the section that makes employers liable when customers harass employees. By its text it does something different: it protects non-employees who provide services in the workplace, such as contractors and vendors.⁠^[13] The NYSHRL has no subdivision that expressly addresses an employer's liability when a customer harasses an employee.⁠^[14] The State's statement that customer harassment is covered appears in its agency guidance.⁠^[2]

The dedicated guide on harassment by customers, clients and vendors goes through each layer.

When tips are part of the picture

The State's model policy names pressure from customers in industries where tips are essential in its examples of sexual harassment, as quoted above.⁠^[9] As a practical matter, telling a manager what happened, and which table, account or customer was involved, puts the business on notice. Under the federal regulation, what the employer knew or should have known is part of the test.⁠^[11]

What if the harasser is a manager, owner or coworker?

The employer-liability rules differ by layer. In New York City, an employer is liable under the NYCHRL for harassment by an employee or agent who exercised managerial or supervisory responsibility.⁠^[15] For conduct by a non-supervisory coworker, the City law makes the employer liable where it knew of the conduct and acquiesced or failed to take immediate and appropriate corrective action, and an employer is deemed to know what a manager or supervisor knew.⁠^[16]

Under the NYSHRL, the fact that a worker did not complain to the employer is not determinative of whether the employer is liable.⁠^[17] The guide on supervisor and coworker harassment explains the federal, State and City rules, and whether an individual can be sued personally is covered separately.

The State's model policy says unlawful sexual harassment is not limited to the physical workplace: it can occur at employer-sponsored events or parties, and through calls, texts, emails and social media even on personal devices or outside work hours.⁠^[18] See sexual harassment outside the office and after hours.

What if I am not the business's employee?

Delivery contractors, vendors' staff, contract cleaners and agency temps often work inside a business that does not employ them.

• New York State. Under Executive Law § 296-d, it is unlawful for an employer to permit unlawful discrimination against non-employees in its workplace. The employer may be liable to a contractor, subcontractor, vendor, consultant or other person providing services under a contract, or that person's employee, when the employer, its agents or supervisors knew or should have known of the discrimination and failed to take immediate and appropriate corrective action.⁠^[13] The extent of the employer's control over the person who engaged in the conduct is weighed.⁠^[13]
• Two businesses, two duties. The State's guidance tells a contractor's employee harassed at a client site that both their own employer and the business operating the worksite are required to provide a harassment-free workplace, and to report to both.⁠^[19]
• New York City. The NYCHRL's protections relating to employees apply to interns, freelancers and independent contractors.⁠^[20]
• Federal. The EEOC says people who are not employed by the employer, such as independent contractors, are not covered by the laws it enforces.⁠^[21]

See who is protected: employees, contractors and interns.

Are domestic workers covered?

Yes. Material that describes domestic workers as protected only against harassment, under Executive Law § 296-b, describes a section that was repealed in 2021.⁠^[3]

• New York State. Domestic workers are "employees" with the full employment protections of the NYSHRL. A State law signed and effective on December 31, 2021, deleted the domestic-service exclusion from the definition of "employee" and repealed Executive Law § 296-b, the former section that protected domestic workers only against certain harassment.⁠^[3]
• New York City. The NYCHRL's protections relating to employees apply to a person's employment of one or more domestic workers, without regard to the number of other employees that person has.⁠^[22]
• Policy and training. The State says domestic workers are covered by the policy and training law and that all employers, "including households employing one person as a nanny or housekeeper," have to adopt a prevention policy and provide annual training.⁠^[5]

What policy, training and notices does my employer owe me?

Under New York State Labor Law § 201-g these duties apply to every employer, whatever its size.⁠^[5]

• A written policy. Every employer has to adopt the State's model sexual harassment prevention policy or one that equals or exceeds its minimum standards, and give it to all employees in writing.⁠^[23]
• Annual training. Every employer has to give sexual harassment prevention training to all employees every year.⁠^[24] The State says "employee" for this purpose includes part-time, seasonal and temporary workers, regardless of immigration status.⁠^[25]
• A notice in your language. At hiring and at every annual training, the employer has to give each employee a written notice containing its policy and the training information, in English and in the language the employee identifies as their primary language.⁠^[26] If the State has not published a template in that language, an English-language notice satisfies the State requirement.⁠^[27]

New York City adds its own rules:

• Employers with 15 or more employees have to give annual interactive anti-sexual harassment training to all employees employed in the City.⁠^[28] The NYC Commission on Human Rights states that the duty also applies to employers of one or more domestic workers.⁠^[29]
• The City training is required after 90 days of initial hire for employees who work more than 80 hours in a calendar year, full-time or part-time.⁠^[30]
• Every employer in the City has to display the Commission's anti-sexual harassment rights and responsibilities poster, in English and Spanish, in breakrooms or other common areas where employees gather.⁠^[31]
• Under the NYCHRL, employers have to give each new employee the Commission's sexual harassment information sheet at the time of hire.⁠^[32]

If your employer has provided no policy or training, the State says you can file a complaint with the New York State Department of Labor, which "can contact your employer and educate them on the requirements of the law."⁠^[33] The full rules are in New York's policy and training requirements.

Does immigration status change any of this?

Under the NYSHRL, harassment because of "citizenship or immigration status" is itself listed as an unlawful discriminatory practice, alongside harassment because of sex.⁠^[17] The State's model policy lists "undermining an individual's immigration status" among its examples of retaliation.⁠^[34] See the rights of undocumented and immigrant workers and immigration-status threats as retaliation.

Where can I ask questions, and how long do I have?

New York State's FAQ on workplace sexual harassment tells workers they can call the Division of Human Rights at 844-697-3471 for information on how to report sexual harassment and for a referral to a volunteer attorney who can give limited free assistance and counsel over the phone.⁠^[35] The Division lists the same number, (844) 697-3471, for its Call Center.⁠^[36] The State's 2023 model policy prints an older hotline name, 1 (800) HARASS3, for that service.⁠^[37] The model policy also says there is no cost to file with the Division and no attorney is needed.⁠^[37] In New York City, the NYC Commission on Human Rights says to call 311 and say "human rights," or to call it directly at 212-416-0197.⁠^[38]

Under New York State law, a sexual harassment complaint may be filed with the Division of Human Rights within three years, and a lawsuit under the NYSHRL may be brought in State court within three years.⁠^[39] In New York City, a gender-based harassment claim may be filed with the Commission within three years after the harassing conduct.⁠^[40] The State's model policy warns that complaining internally to the employer does not extend the time to file with the Division or in court.⁠^[37] A federal Title VII charge has its own filing period, 300 days in New York according to the EEOC's New York District Office.⁠^[41] See every deadline in one table. The definitions themselves are in what counts as sexual harassment in New York.