New York Employment Lawyer Blog

In New York, an employee may not sue his or her employer for physical injuries caused by the acts of a co-worker.

This is because New York's Workers' Compensation Law provides the exclusive remedy for an employee who seeks damages for unintentional injuries which he or she incurs in the course of employment. This exclusive remedy of workers' compensation precludes an employee's claims against his or her employer for negligent hiring, training, supervision and retention of another employee who assaults and injures that employee.

The only exception would be where the assault was perpetrated at the employer's direction. However, even in those cases, the complaint must allege an intentional or deliberate act by the employer directed at causing harm to this particular employee. In order to constitute an intentional tort, the conduct must be engaged in with the desire to bring about the consequences of the act; a mere knowledge and appreciation of a risk is not the same as the intent to cause injury.

See, Pereira v. St. Joseph's Cemetery, 864 N.Y.S.2d 491 (2nd Dept. 2008); Martinez v. Canteen Vending Services Roux Fine Dining Chartwheel, 795 N.Y.S.2d 16 (1st Dept. 2005).

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.

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.

The Second Circuit recently held, in Sharon Kaytor v. Electric Boat Corp. (June 29, 2010), that a sexual harassment claim under Title VII of the 1964 Civil Rights Act could be based on certain non-sexual conduct. The court found that an alleged harasser who makes gender-specific slurs and comments can create a hostile work environment for a female employee even though the harasser is an "Equal Opportunity Harasser" who makes crass and offensive remarks to "everyone, regardless of gender."

In this case, a female secretary alleged that her male boss made offensive sexual comments to her, leered at her, and even sniffed her scarves that were on her desk. When she denied his advances, things got worse. The plaintiff claimed that afterwards, the defendant told her that he wanted to "choke" her, to "see her in her coffin," and to "kill" her. She also alleged that he gave her potted pussy willow plant, along with a card in which he wrote that he hoped the plant would bring her "pleasure in the years ahead."

The plaintiff felt that her bosses threats to kill and choke her were uttered by one who "had designs on" her and was miffed that she would not fall for his advances.

On a motion for summary judgment, the court found that a rational jury could infer from the defendant's sexual comments and inappropriate remarks that the gender neutral threats of violence that he directed toward the plaintiff were, in fact, because of her gender. In its opinion, the Second Circuit also cited a previous case in which it held that "the inquiry into whether ill treatment was actually sex-based discrimination cannot be short-circuited by the mere fact that both men and women are involved . . . . It would be exceedingly perverse if a male [supervisor] could buy . . . his company immunity from Title VII liability by taking care to harass sexually an occasional male worker, though his preferred targets were female."

This decision shows that threats of violence could help form the basis of a sexual harassment hostile work environment claim if those threats, taking into account the totality of the circumstances, are the result of one's sexual advances being rejected. The court stated that the question of whether plaintiff's sex caused the conduct at issue requires an assessment of individuals' motivations and state of mind, not merely the words spoken. Lastly, it's crucial to understand that the fact that a harasser also makes remarks to male employees will not, by itself, serve as a defense to claims for sexual harassment or hostile environment.

Employers are encouraged to consult with a New York sexual harassment attorney to confirm that their company has a clear zero tolerance anti-harassment policy that doesn't only prohibit sex-based harassment but also prohibits all violence and threats.

The New York State Senate recently passed a bill that would give employees the right to sue their employer for workplace bullying. However, in order for the bill to become law, it still needs to be passed by the State Assembly.

Most people, at one point or another, have had a boss that is just plain mean and obnoxious. Some bosses are notorious for intentionally embarrassing their employees and others are so rude that the office atmosphere becomes a tense and passive aggressive environment. There are too many bosses who abuse their title and take advantage of their employees. Unfortunately, as the law stands right now, there really isn't much an employee can do if the obnoxious behavior is not motivated by a discriminatory animus. Most people have a difficult time understanding this concept. Basically, you cannot sue an employer for being mean. Your boss's unacceptable behavior doesn't have to be fair - it just has to be legal.

However, this all might soon change. New York's Healthy Workplace/Workplace Bullying Bill would allow employees that were verbally assaulted in the workplace to sue their boss and receive lost wages, compensation for emotional distress, as well as punitive damages. A bullying boss, according to the bill, is someone who is motivated by malice and who is destructive and injurious. The law would make it unlawful for one employee to subject another employee to malicious conduct, and furthermore, the law will provide protection against retaliation for complaining about such conduct.

Nonetheless, the bill gives employers an opportunity to not be held liable when it exercises reasonable care to prevent and promptly correct the abusive conduct.

Be sure to check back for all updates with respect to this bill. In addition, if you feel that there is currently a problem with bullying in your office, it is always smart to contact an anti-harassment employment attorney.