NYEmploymentLaw
New York, NY
Male, 34
I am a labor and employment attorney for a large New York law firm that represents employers in various areas of litigation, including discrimination and wage and hour claims. I also advise/counsel clients on a multitude of labor and employment matters as they arise, conduct internal investigations, harassment and other training, and help ensure that employers are up-to-date and in compliance with federal, state and local law. Nothing below should be construed as legal advice.
There is no clear threshold as to what constitutes sexual harassment. What constitutes sexual harassment is often not obvious or clear-cut, especially "hostile work environment" sexual harassment. Quid Pro Quo (tit for tat) harassment is easier to determine. It involves situations such as, "If you do not give in to my sexual demands, I will demote you," or "If you give in to my sexual demands, you will get a good evaluation." It conditions a concrete employment benefit or avoidance of an employment detriment on sexual favors. Less obvious and more common in the workplace is what I referred to as "hostile work environment" sexual harassment. Often, it is unintentional and therefore, it is very difficult to measure. It involves verbal, physical or visual conduct that is of a sexual nature, it is unwelcome and "severe or pervasive" enough to create a hostile or abusive workplace or alter one's work conditions (making it so unpleasant/unbearable to come to work or be effective in the workplace). Intent does not matter, and you may be found to have created such a hostile environment, even if a third party overhears conversations (e.g., between you and another co-worker who is a friend). As to the question at hand, if you ask a co-worker on a date on a single occasion in a friendly manner, it is not likely to be harassment. However, if you repeatedly ask, that may qualify as harassment, causing the employee to feel extremely uncomfortable. And, in the context of a supervisor-subordinate relationship, asking someone you supervise out could be seen as a form of the Quid Pro Quo harassment discussed above (beyond the fact that it is probably prohibited in your workplace).
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There is always a risk that someone who is in a "protected class" (e.g., someone who is pregnant) could sue even though there is no reason to suspect wrongdoing. That doesn't mean that you have done anything illegal or wrong. As long as you did NOT consider the pregnancy of the applicant AT ALL in your decision making and can show that the other candidate was equally qualified, there is no law requiring you to hire a pregnant candidate over a non-pregnant candidate. However, you can never mention pregnancy let alone consider it in your decision-making. Many employers are afraid to hire pregnant women because they fear that they won't be as committed to their jobs because of caregiving responsibilities. It is unlawful to discriminate against both someone with caregiving responsibilities and one without. That said, this is a society that sues. If the pregnant applicant sued and it was discovered that other pregnant applicants or workers were discriminated against or not hired, you could find yourself in trouble. But, no, you do not have to choose a pregnant candidate over an equally-qualified non-pregnant candidate if the fact of her pregnancy is of no import.
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Several years ago, the Equal Employment Opportunity Commission issued guidance on this very issue. It is equally unlawful to discriminate against someone who is single and has no family by requiring that they work longer hours or be available more than others than it is to discriminate against someone who has "caregiving" responsibilities. See http://www.eeoc.gov/policy/docs/caregiving.html
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Worker misclassification, whether deeming certain individuals consultants (to avoid paying benefits) or labeling employees who do not qualify as exempt (to avoid paying overtime) is a hot topic today, and, for this reason, the government is increasingly cracking down on these practices. Consultants must have control over their work assignment, and some employers today are hiring people as consultants even though they are essentially employees who take direction from the employer. This avoids employer responsibility for paying benefits that employees would otherwise receive. By labeling an employee who is not an administrator, executive or professional as "exempt," an employer can avoid paying overtime to employees. This, too, is an increasing problem. It should be stated that part of this problem is that who is exempt and who is not exempt is not always clear. However, in a majority of cases, the delineation is not ambiguous.
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Radio program/music director
Just how good of a radio host do you think Howard Stern is?
Dry Cleaner
Why do dry cleaners have autographed pictures on their walls?
Firefighter
What's the worst you've been burned in a fire?
Hooters claims that hiring only female waitresses is what is called a "bona fide occupational qualification," or a "BFOQ." The company would argue that being female is an essential part of the job because its business is based on the idea that people go to Hooters to see attractive women. However, one should note that there have been numerous lawsuits about this, and some settlements. It is not altogether clear whether a court will uphold this allowance in the future should a court issue an opinion. For example, there is currently a lawsuit pending regarding weight requirements among Hooters waitresses.
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Under the Family Medical Leave Act, employers with 50 or more employees within a certain geographic region must provide employees with up to twelve weeks of unpaid leave for the birth of a child and rearing the child in the first months after birth. In order to qualify, an employee must have worked with her employer for 12 months and worked 1,250 hours (minimum).
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If you feel comfortable telling your boss that he or she is making you uncomfortable you may do so. However, often, employees are not comfortable doing so or speaking to the boss does not resolve the problem. For this reason, most companies have policies and procedures for reporting such incidents. You will typically bring your complaint or grievance to someone more senior that your supervisor or to HR personnel who should promptly investigate the matter. You can not be fired for making a good faith complaint against your employer if he or she has done something that you believe was harassing, discriminatory or if you blow the whistle on a perceived illegal activity.
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