New York Employment Lawyer Blog

The U.S. District Court for the Southern District of New York (federal court in New York), recently reinforced, in Durkin v. Verizon New York, Inc., the fact that Title VII allows for claims of sexual harassment even where the alleged perpetrators are the same gender as the victim.

To prevail on a claim of Title VII sexual harassment based on a hostile work environment, a plaintiff must first establish that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his or her work environment. A plaintiff must also prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination "because of sex."

In this case, a female employee of Verizon claimed that her female co-workers subjected her, on an almost daily basis, to derogatory comments about her breast size. The co-workers would say things like, "Did you have breast surgery?" and "Are those your real boobs?" These remarks were coupled with requests to see her breasts and for her to take off "the miracle bra." Some of these co-workers even came to work on Halloween with their bras stuffed and wearing nametags with the employee's name written on them.

This constant taunting led the employee to complain to management more than 100 times and to request a transfer. However, her supervisor advised her that the only course of action open to her was a demotion to a previous location and job title. Although she continued to complain about this unlawful conduct, no action was taken, and she was eventually forced to take a leave of absence due to the harassment.

She ultimately brought a lawsuit in federal court, in which she alleged that her female co-workers' comments and behavior constituted sexual harassment in violation of Title VII. Verizon argued that her claim should not be allowed to proceed since the comments were made by other females and therefore could not constitute harassment "because of sex."

The court held that because breasts are a distinctively female characteristic, and the plaintiff was treated differently because of her breasts, the treatment was inherently "because of sex." The court explained that it's reasonable for a jury to conclude that the female co-workers were jealous of her breast size, that she got better treatment because of her breast size (there was some indication she received more overtime than her female colleagues), and that she was treated differently because of her breast size.

The court also made clear that merely adopting an anti-harassment policy will not protect an employer from liability if that employer also fails to promptly and effectively respond to complaints of harassment.

As a New York sexual harassment attorney, I always advise employers to make sure that all complaints of sexual harassment are taken seriously and fully investigated, regardless of whether the alleged harasser and the victim are members of the same gender.

The Second Circuit Court of Appeals (New York federal court) recently held, in Fincher v. Depository Trust & Clearing Corp., that an employer's failure to investigate a complaint of discrimination cannot be considered, in and of itself, an adverse employment action taken in retaliation for the filing of the same discrimination complaint. An employee whose complaint is not investigated cannot be said to have thereby suffered a punishment for bringing that same complaint. This is because an employee's situation in the wake of making a complaint of discrimination is the same as it would have been had the employee not brought the complaint or had the complaint been investigated but denied for good reason or for none at all.

In this case, the plaintiff, an African-American, began working for the defendant in 2001 as a product manager in their international tax department. Her position was eliminated in 2004 and the company transferred her to the audit department as a senior auditor. After this reassignment, the plaintiff's performance evaluations deteriorated greatly, ultimately resulting in a March 2006 "performance warning," which stated that failure to improve could result in her termination.

In late March 2006, the plaintiff had a conversation with the company's Director of Employee Relations in the lobby of their office building. According to the plaintiff, she complained to him that "black people were set up to fail at [the Auditing] department because they were not provided and given the same training opportunities as the white employees."

She then resigned, in June 2006, saying her resignation was due to racial discrimination and the company's failure to act on her complaints. Four months later, she sued for, among other things, race discrimination and retaliation.

The court explained that in order to constitute actionable retaliation, the employer must engage in "affirmative efforts" to punish the employee for having complained. The failure to investigate is not an "affirmative effort" that could constitute an "adverse" action. The court, however, did indicate that if the employer's failure to investigate a complaint was in retaliation for some separate, protected act by the plaintiff (not the filing of the same complaint that the employer then failed to investigate), then it may constitute an adverse action for purposes of a retaliation claim.

In New York, before someone can file a Title VII sexual harassment lawsuit in federal court, he or she must first file a charge (complaint) with the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged discriminatory act(s). When analyzing a Title VII hostile work environment sexual harassment claim, courts will then usually only consider events that occurred within those 300 days. However, courts can consider incidents that occurred outside the statute of limitations as long as a sufficiently related act contributing to the hostile environment takes place within the statutory time period. The Second Circuit Court of Appeals (New York federal court) previously held, in Washington v. County of Rockland, that "under Title VII's continuing violation doctrine, if a plaintiff has experienced a continuous practice and policy of discrimination . . . the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it."

As a New York employment discrimination lawyer, I recently happened to come across an interesting case that examined this principle - McGullam v. Cedar Graphics Inc. In this case, the Second Circuit held that a single remark made within the 300-day statute of limitations was not sufficiently related to prior time-barred instances of sexual harassment to sustain a new claim for sexual harassment.

Here, the plaintiff alleged that while employed in the production department of Cedar Graphics, she was regularly exposed to sexual comments and vulgar language by male co-workers and management. The plaintiff complained about the sexual harassment and, at her request, was transferred to a position in the company's estimating department, at which point, according to the plaintiff, the harassment ceased. Nonetheless, sometime following her transfer, the plaintiff overheard a conversation between some of the company's salesmen in which one referred to women as "chickies" and stated that one of his female friends was worth visiting only if he was going to have sex with her. Notably, these salesmen were not members of either the production department or the estimating department, and the plaintiff was not a participant in this conversation.

The plaintiff was ultimately terminated for unknown reasons and decided to file claims against the company for sexual harassment under New York law and Title VII. The only incident that occurred within the limitations period was the "chickies" conversation, and the Second Circuit found that this alone was not severe or pervasive enough to alter the conditions of her employment. As the court stated, "the chickies comments are too trivial to contribute to a Title VII hostile work environment claim. They were not obscene or lewd, or even sexually suggestive."

The Second Circuit also held that the "chickies" comments were not sufficiently related to the earlier conduct for numerous reasons, including that the employer transferred the plaintiff away from the department where she experienced harassment to a different department where she admitted she had no problem. In addition, the court found that the "chickies" comments occurred more than a year after her transfer and were not even directed toward or about the plaintiff. Lastly, the court found it relevant that the salesmen were neither a part of the earlier harassment nor members of either the estimating or production departments.

In order to prove a Title VII hostile work environment sexual harassment claim, a plaintiff is required to establish that the harassment was sufficiently severe or pervasive to alter the conditions of his or her employment and create an abusive working environment and that there is a specific basis for imputing the conduct creating the hostile work environment to the employer.

When the harassment is done by a supervisor, the employer will in most circumstances be automatically liable for the illegal conduct. When the harassment is done by a co-worker, the employer is not automatically liable, and a plaintiff is required to prove that the employer knew about the harassment, or in the exercise of reasonable care should have known about the harassment, and failed to act promptly to stop it.

In Duch v. Jakubek (2009), the Second Circuit Court of Appeals (federal court covering New York) addressed the question of whether a supervisor's knowledge of co-worker sexual harassment could be imputed to the employer even though the supervisor was never specifically told of and did not witness any harassment.

In this case, the plaintiff notified her supervisor that she wanted to change her schedule to avoid working alone with a co-worker but neglected to tell her supervisor why she wanted the change. When the supervisor asked her if she had a problem with this co-worker, she became emotional and after gaining her composure said, "I can't talk about it." Her supervisor then replied, "that's good because I don't want to know what happened," and laughed. Although he changed her schedule so she would not have to work alone with this co-worker, the harassment nonetheless continued and the plaintiff was forced to quit her job as a result.

If she could show that her supervisor had knowledge of the harassment, there is no doubt that his knowledge can be imputed to the company because he was her supervisor and, as such, "was charged with a duty to act on the knowledge and stop the harassment." The court found that there was sufficient evidence from which the jury could find that her supervisor knew, or should have known about the harassment because: 1) he knew that she asked for a change in her work schedule when she was scheduled to work alone with this co-worker, 2) he knew that the co-worker had engaged in sex-related misconduct toward females in the past, 3) he knew that the subject of working with this person caused the plaintiff to become emotional, teary and red, and lose her composure, 4) he said "good . . . I don't want to know what happened" when the plaintiff said she didn't want to talk about it, and 5) he agreed to change the plaintiff's schedule so that she didn't have to work with this co-worker alone.

Based upon the above, the Second Circuit held that a reasonable jury could conclude that the plaintiff's employer had at least constructive knowledge of the sexual harassment directed at her. The court found that a jury could reasonably find that her supervisor strongly suspected that it was the sexual harassment on her co-worker's part, which was responsible for the plaintiff's emotional reaction, and that her supervisor understood that the issue was ongoing.

The plaintiff's supervisor thus had a duty to make at least a minimal effort to discover whether this co-worker had engaged in sexual harassment, and encourage her to reveal the full extent and nature of the harassment. Unfortunately, instead of encouraging the plaintiff to discuss the problem, he discouraged her from revealing the full extent and nature of the harassment by stating that he did not want to know what happened.

The court made clear that an employer's "purposeful ignorance" through its supervisors who have a duty to act on strong indications of harassment will not shield an employer from liability under Title VII.

The court also concluded that a jury could find that defendant's response was unreasonable. Although her supervisor adjusted the schedule so that the plaintiff and her harasser would not be working together alone, the harassment persisted and even escalated during the subsequent months. A formal investigation did not commence until three months later, and only after the plaintiff had informed another co-worker of the harassment.

This case helps to clarify what constitutes notification and the action that must be taken once the employer is informed of the harassment. Victims of harassment are often fearful of formally submitting a written complaint of harassment. This case shows that even informal and non-specific conversations can trigger an employer's obligation to investigate and take appropriate action to stop the harassment.

It is thus so important to consult with a New York sexual harassment attorney to make sure that all supervisors understand what constitutes harassment, how to recognize it, and how to report the harassment to management for an investigation.

The Family and Medical Leave Act (FMLA) provides employees with the right to take an unpaid leave for up to twelve weeks following the birth or adoption of a child. However, to be eligible for leave under the FMLA, an employee must have worked for her current employer for a minimum of twelve months. In addition, such leave is only available during the first twelve months following the birth or adoption, not before the baby is born or adopted.

Although the FMLA only applies to employees that have worked for their employer for at least twelve months, there are certain circumstances where a pregnant employee that has worked for less than twelve months may nonetheless be entitled to a leave of absence under the Americans with Disabilities Act (ADA).

The ADA requires that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities. Although pregnancy is typically not a disability within the meaning of the ADA, severe medical complications resulting from that pregnancy can constitute a disability.

Courts have repeatedly distinguished between a normal, uncomplicated pregnancy and a complication or condition arising out of the pregnancy. Some women experience complications as a result of the pregnancy or exacerbation of already existing impairments such as diabetes, back impairment, high blood pressure, and depression. Courts analyzing whether or not such complications may support an ADA claim have been increasingly receptive to the premise that certain physiological pregnancy consequences, if sufficiently severe, may indeed give rise to a protected disability within the meaning of the ADA.

The Equal Employment Opportunity Commission (EEOC) even stated that an "otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leave would not impose an undue hardship" on the employer.

Lastly, although the ADA typically requires employees to propose an anticipated return date at the time the employee requests the leave, courts have found that pregnancy-related disabilities are unique. Unlike other illnesses of permanent or indefinite duration, disabilities that are diagnosed as exclusively pregnancy-related could reasonably be expected to subside at the conclusion of the pregnancy.

For employers and employees working in New York City, it's important to remember that the New York State Human Rights Law and New York City Human Rights Law also require that employers make reasonable accommodations to otherwise qualified individuals with disabilities.

All employers should consider having a pregnancy discrimination attorney examine their company's maternity leave policies as well as their general disability leave policies to ensure compliance with Federal, New York State, and New York City laws.

As most employers are aware, New York is an "employment-at-will" state. This means that without a contract (or collective bargaining agreement) restricting the reasons for termination, an employer has the right to discharge an employee at any time for any reason, even if that reason seems completely arbitrary and unfair. In fact, an employer may even terminate an employee for no reason at all. On the same note, employees in New York are equally free to quit their jobs at any time without being required to explain or defend their decision.

However, although it's an at-will state, it is nonetheless so important, when disciplining or terminating an employee, for employers in New York to provide that employee with a coherent and consistent explanation for the adverse employment action taken.

Why? Because any inconsistent or conflicting reasons given in the future will only strengthen an employee's claim for discrimination or unlawful retaliation. And believe me when I say that plaintiffs' attorneys jump all over this and will exploit the inconsistencies to the end.

In order to prove discrimination, the employee must first establish a prima-facie case by demonstrating that: (1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she suffered an adverse employment action; and (4) the action occurred under conditions giving rise to an inference of discrimination. If the plaintiff makes out a prima-facie case, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action. If the employer makes such a showing, the burden shifts back to the employee to show that the employer's proffered reason is pretextual.

Pretext generally refers to a reason that is false and offered to cover up the true motives or intentions. Pretext can be established by showing that the employer's explanation for termination is not credible. And here's the kicker - New York courts have held that an employee may show pretext by demonstrating inconsistencies, incoherencies, or contradictions in the employer's proffered "legitimate" reasons for its action. It is thus reasonable for a jury to find the proffered reason(s) unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.

As a New York City employment attorney, I always advise employers in New York to decide on a reason for termination, give that reason to the employee at the time of termination, and never contradict or change that reason in the future. By neglecting to give the employee any reason for the termination, employers only leave the door open for that employee to allege discrimination in the future.

On July 7, 2010, the Occupational Safety and Health Administration (OSHA) announced the launching of a new website that provides information for employees who complain about health and safety violations in the workplace.

Under the Occupational Safety and Health Act (OSH Act), employees may file complaints with OSHA if they believe their employer has retaliated against them for raising their rights pursuant to the OSH Act. These rights include filing health or safety complaints with OSHA, seeking an OSHA inspection, participating in an OSHA inspection, participating or testifying in any proceeding related to safety or health, or reporting an injury or illness to their employer.

OSHA also enforces the whistleblowing provisions of eighteen other statutes, protecting employees who report violations related to air carrier safety, commercial motor carriers, asbestos in school, consumer products, environmental safety, corporate fraud, health care reform, nuclear energy, pipeline safety, public transportation, railroad safety, and securities laws.

A person filing a complaint of retaliation with OSHA will be required to show that he or she engaged in a protected activity, the employer knew about that activity, the employer subjected him or her to an adverse employment action, the protected activity contributed to the adverse employment action, and the adverse employment action occurred within the last 30 days (some deadlines differ depending upon the statute alleged to have been violated).

An adverse employment action is generally defined as any action that would dissuade a reasonable employee from engaging in the protected activity. According to the site, examples include:

• Firing or laying off
• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denial of benefits
• Failure to hire or rehire
• Intimidation
• Reassignment affecting prospects for promotion
• Reducing pay or hours

Now that OSHA is making an active effort to encourage employees to complain to them about health and safety violations and unlawful retaliation, it's more important than ever for employers to make sure there are comprehensive complaint procedures in place so that disputes get resolved internally before their employees decide to file with OSHA.