What Counts as Sexual Harassment at Work in New York?

Three laws address workplace sexual harassment in New York at the same time: federal, State and City.⁠^[8][1][9] Under the New York State Human Rights Law (NYSHRL), it is an unlawful discriminatory practice for an employer to subject any individual to harassment because of sex, sexual orientation, or gender identity or expression, and the harassment is unlawful when it subjects the person to inferior terms, conditions or privileges of employment.⁠^[1] The New York City Human Rights Law (NYCHRL) and federal Title VII reach the same kind of conduct with different tests, described below.⁠^[10][2]

If you are in danger or were assaulted. If you are in immediate danger, call 911.⁠^[11] The New York State Domestic and Sexual Violence Hotline is 800-942-6906 (text 844-997-2121); the State office that publishes it says conversations are confidential and available 24/7.⁠^[12] The national sexual assault hotline run by RAINN is 800-656-HOPE (800-656-4673).⁠^[13] The State's model policy notes that harassment involving unwanted physical touching, coerced physical confinement or coerced sex acts may be a crime, and that people who wish to pursue criminal charges can contact their local police department.⁠^[14]

How each layer of law defines sexual harassment

Federal, State and City law all treat sexual harassment as discrimination, but they do not use the same words or the same test. The table sets the three side by side. For how the layers fit together generally, see the three layers of workplace law.

Question	Federal law (Title VII)	New York State law (NYSHRL)	New York City law (NYCHRL)
Where the rule comes from	Title VII bars discrimination in terms, conditions or privileges of employment because of sex; the U.S. Supreme Court held in 1986 that harassment creating a hostile environment is sex discrimination.⁠[15][8]	The statute names harassment because of sex, sexual orientation, or gender identity or expression as an unlawful discriminatory practice.⁠[1]	There is no separate harassment section; harassment claims are brought as discrimination in terms, conditions or privileges of employment.⁠[9]
The test	The conduct must be severe or pervasive enough to alter the conditions of employment and create an abusive working environment.⁠[2]	Harassment is unlawful when it subjects a person to inferior terms, conditions or privileges of employment, regardless of whether it would be considered severe or pervasive.⁠[1]	The employee must show they were treated less well than other employees because of gender; severity and pervasiveness go to damages, not liability.⁠[10][16]
The floor	Title VII does not prohibit all verbal or physical harassment and is not a general civility code.⁠[17]	The employer has an affirmative defense if the conduct does not rise above what a reasonable victim with the same protected characteristics would consider petty slights or trivial inconveniences.⁠[1]	The employer can avoid liability by proving the conduct was no more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences.⁠[18]
Which employers	Employers with 15 or more employees.⁠[6]	All employers within the state.⁠[4]	For a gender-based harassment claim, any employer, including one with fewer than four people.⁠[5]

The EEOC's federal regulation defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission is made a term or condition of employment, when submission or rejection is used as the basis for employment decisions, or when the conduct unreasonably interferes with work performance or creates an intimidating, hostile or offensive working environment.⁠^[19]

What New York State's model policy says counts

Every New York employer has to adopt a sexual harassment prevention policy that meets or exceeds the State's model, so the model policy's wording is the baseline for employers' own policies.⁠^[20] It defines sexual harassment as a form of gender-based discrimination that includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity and the status of being transgender.⁠^[21]

The State model policy describes sexual harassment as unwelcome conduct that is either of a sexual nature or directed at a person because of gender identity or expression, when:⁠^[22]

• its purpose or effect unreasonably interferes with a person's work performance or creates an intimidating, hostile or offensive work environment;⁠^[22]
• employment depends, implicitly or explicitly, on accepting the conduct; or⁠^[22]
• decisions about a person's employment are based on accepting or rejecting it.⁠^[22]

The State model policy names two main types. A hostile work environment can be built from words, signs, jokes, pranks, intimidation or physical violence that are sexual or are directed at someone because of sex, gender identity or gender expression.⁠^[22] Quid pro quo harassment is a person in authority trying to trade job benefits for sexual favors.⁠^[22]

The State model policy makes three further points. The person affected does not need to be the intended target.⁠^[22] Not intending to harass is not a defense under the policy, because the impact on the person is what counts.⁠^[22] And any harassing conduct, even a single incident, can be discrimination.⁠^[22]

Examples the State gives

The State model policy lists types of acts that may be unlawful sexual harassment. It calls the list a sample that should not be considered exhaustive.⁠^[23]

• Physical acts: touching, pinching, patting, kissing, hugging, grabbing, brushing against or poking another employee's body, and rape, sexual battery or molestation, which the policy notes may be criminal.⁠^[22]
• Unwanted advances and propositions: requests for sexual favors tied to job benefits, pressure from customers on service-industry employees, subtle or obvious pressure for unwelcome sexual activity, and repeated requests for dates or romantic gestures, including gift-giving.⁠^[24][22]
• Remarks and jokes: sexually oriented gestures, noises, remarks or jokes, and questions or comments about a person's sexuality, sexual experience or romantic history, in person or over virtual platforms and messaging apps.⁠^[25]
• Displays: pictures, posters, calendars, graffiti or other materials that are sexually demeaning or pornographic, including on workplace computers or cell phones.⁠^[25]
• Sex stereotyping: remarks about an employee's gender expression, or asking a woman to serve meeting refreshments when that is not part of her job.⁠^[25]
• Hostile actions because of sex, sexual orientation or gender identity: sabotaging work, bullying, yelling or name-calling, intentional misuse of a person's preferred pronouns, and setting different expectations based on perceived identity.⁠^[25]

More illustrations are in examples of a hostile work environment.

Does it have to be severe, repeated or sexual?

"Severe or pervasive" is the federal Title VII test.⁠^[2] The State statute's harassment provision took effect on October 11, 2019, and applies to claims accruing on or after that date; under it, harassment is unlawful regardless of whether it would be considered severe or pervasive.⁠^[26][1] Courts applying the City law reject the severe-or-pervasive test as well.⁠^[16] The page on the federal test New York abandoned covers the change in detail.

None of the three laws reaches every unpleasant moment at work. Under the City law the employee must still show the conduct was caused at least in part by a discriminatory motive; an overbearing or obnoxious boss is not enough.⁠^[27] Under federal law the employee must prove the conduct was discrimination because of sex, not merely conduct tinged with offensive sexual connotations.⁠^[17] Under the State law the employer may raise the petty-slights defense described in the table.⁠^[1]

Nor does the conduct have to be sexual. The State model policy says so directly, and the U.S. Supreme Court has held that harassing conduct need not be motivated by sexual desire to be discrimination because of sex under Title VII.⁠^[3][28]

Who can be a harasser, and who is protected?

The State model policy says sexual harassment can occur between any individuals regardless of sex or gender, and that harassers can be anyone in the workplace: a supervisor, a supervisee, a coworker, or a non-employee such as an independent contractor, vendor, client, customer, patient, constituent or visitor.⁠^[7] Under federal law the EEOC likewise says the victim and the harasser can be the same sex, and that the harasser can be a supervisor, a coworker, or someone who is not an employee, such as a client or customer.⁠^[29] See same-sex harassment and harassment based on gender identity or sexual orientation and harassment by customers, clients or vendors.

Protection is not limited to regular employees. Under the State Human Rights Law, an employer can be liable to a contractor, vendor, consultant or other person providing services under a contract in its workplace when it knew or should have known of the discrimination and failed to take immediate and appropriate corrective action.⁠^[30] Under the City Human Rights Law, the protections for employees apply to interns, freelancers and independent contractors.⁠^[31] The page on who is protected goes through each group.

Who the harasser is also affects when the employer itself is legally responsible, and here the layers differ again. Under the City law an employer is liable for harassment by an employee who exercised managerial or supervisory responsibility.⁠^[32] Under federal law an employer may have an affirmative defense to a supervisor's harassment that did not end in a tangible employment action.⁠^[33] Under the State law, the fact that the person did not complain to the employer is not determinative of whether the employer is liable.⁠^[1] See supervisor or coworker: when the employer is responsible.

Where it can happen

The State model policy says unlawful sexual harassment is not limited to the physical workplace: it can occur on business travel, at employer- or industry-sponsored events, and through calls, texts, emails and social media, even on personal devices or outside work hours.⁠^[34] It also says harassment can occur while employees work remotely, including on virtual meeting platforms and in messaging apps.⁠^[35] Two guides go further: work events, business trips and after hours and harassment by text, chat, email and video call.

Time limits, in brief

Layer	Where	Time limit
Federal	EEOC charge	300 days from the alleged harm in New York, for employers with 15 or more employees.⁠[36]
New York State	Division of Human Rights complaint	Three years after the alleged unlawful discriminatory practice.⁠[37]
New York State	Court	Three years.⁠[38]
New York City	NYC Commission on Human Rights complaint	Three years after the harassing conduct, for a claim of gender-based harassment.⁠[39]
New York City	Court	Three years after the alleged discriminatory practice.⁠[40]

The State model policy warns that complaining internally to the employer does not extend the time to file with the Division of Human Rights or in court.⁠^[41] Other rules can apply to particular employers and kinds of claims, so check every deadline in one table before relying on any single number.

What employers have to do, and where to ask questions

Under New York Labor Law § 201-g, every employer must adopt a written sexual harassment prevention policy and give all employees sexual harassment prevention training every year.⁠^[20][42] The details, including New York City's additional rules, are in what New York employers must do and inside the State's model policy.

Guides in this section

The State model policy covers quid pro quo conduct, retaliation and bystander reporting alongside its definition of harassment.⁠^[22][43][44] Each of those topics, and several others, has its own guide:

• Quid pro quo harassment: when a job benefit is tied to sexual conduct.
• NDAs and confidentiality in settlements and forced arbitration.
• When workplace sexual misconduct is also a crime, civil time limits for sexual assault and New York City's Gender-Motivated Violence Protection Act.
• Retaliation after reporting and what witnesses and bystanders can do.
• Tipped workers, retail, hospitality and domestic work.
• How to report harassment to your employer.