New York Employment Lawyer Blog

Pursuant to Title VII of the 1964 Civil Rights Act, "[e]very employer . . . shall post and keep posted in conspicuous places upon its premises where notices to employees, applicants for employment, and members are customarily posted a notice to be prepared or approved by the Commission setting forth excerpts from or, summaries of, the pertinent provisions of this subchapter and information pertinent to the filing of a complaint." Sec. 2000e-10.

Employers who fail to comply with this requirement may lose their right to a statute of limitations defense. In Wei Hong Zheng, et. al., v. Wong, et. al. (E.D.N.Y. 2009), an employee working in the restaurant of a hotel-casino in Atlantic City filed a complaint alleging that she had been discriminated against and fired because of her race, sex and/or national origin.

The statute of limitations for filing a complaint under Title VII is 300 days from the alleged discriminatory act. However, the employee in this case did not file her complaint until 364 days following her termination. The employer therefore filed a motion to dismiss on the ground that the Title VII claims were barred by the statute of limitations.

However, the employee argued that her claims were not barred because the employer failed to post the required Title VII notice and that, without the benefit of the mandatory notice, she was unaware of her rights under the law and did not learn of them until after she had consulted with an attorney.

The Eastern District of New York (New York federal court) found that the employer's failure to post the notice excused the two-month delay. The Court held that an employer's failure to post the required Title VII notices will equitably toll the 300-day limitations period until such time as the employee learns or reasonably should have learned of her rights through some other means.

Contact a New York City employment discrimination attorney to confirm that your company is complying with the mandatory notice requirements.

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.

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.

As an employment attorney practicing in New York City, I feel obligated to clarify the negative consequences that can occur as a result of lying on a resume. Most cases concerning falsified resumes arise from situations in which an employee has been terminated for reasons other than lying on his or her resume (ex. poor work performance). After being terminated, the employee commences a lawsuit for unlawful discrimination and/or retaliation, and during discovery, the employer discovers for the first time that the employee's resume that was submitted with the original job application had been falsified and is fraudulent.

Because the evidence of the resume fraud was first discovered after the termination had already occurred, this new information is called "after-acquired evidence," and can be used by the employer as a defense to the claims of discrimination and/or retaliation.

In fact, in Quinby v. WestLB AG (2007), the Southern District of New York (federal court covering Manhattan) held that a plaintiff will not be entitled to certain remedies, such as reinstatement and front pay, if the employer can show that it would have terminated the employee anyway based on information that was not acquired until after she was terminated. However, the party asserting the "after-acquired evidence" defense must establish that the wrongdoing was of such severity that the employee would have been terminated on those grounds alone if the employer had known of it at the time of the termination.

As the New York State Supreme Court stated in Bogota v. The University Club (July 3, 2010), the "New York City Human Rights Law imposes liability on employers for the unlawful discriminatory practices of their employees or agents when they exercise managerial or supervisory responsibility, or when the employer knew of the employee's discriminatory conduct and either acquiesced or failed to take immediate and appropriate corrective action, or when the employer should have known of the conduct and failed to exercise reasonable diligence to prevent it. An employer is deemed to have knowledge of an employee's unlawful conduct where the conduct was known to another employee or agent exercising managerial or supervisor responsibility."

Moreover, the court also stated that pursuant to the New York City Human Rights Law, "where an employer's liability is established based solely on the conduct of its employee, the employer is permitted to plead and prove that, prior to the discriminatory conduct for which it was found liable, it had established and complied with policies, programs, and procedures to prevent and detect unlawful discriminatory practices by employees, including a meaningful and responsive investigative procedure and procedures for taking appropriate action; it had a firm policy communicated to employees indicating that the company is against such practices and it had a program to educate employees and agents about unlawful discriminatory practices, and had procedures for supervision and oversight of employees directed at prevention and detection and, as well, that it had a record of no or few prior incidents of discriminatory conduct by the employee."

In Bogota, the plaintiffs brought claims for hostile work environment, as well as quid pro quo, sexual harassment against The University Club under the New York City Human Rights Law.

The University Club made a motion for summary judgment in which it argued that the company "prohibited sexual harassment and had established a meaningful complaint process, that none of the plaintiffs ever explicitly complained about sexual harassment, and when plaintiff Bogota did complain, The University Club took prompt corrective action, including pulling [the supervisor] from the job."

The court denied the motion and held that although the company provided training to its employees and maintained an anti-discrimination policy, the University Club could not show that any of the plaintiffs actually received a written copy of the company's policy, nor could they show that any of the plaintiffs attended a sexual harassment training.

In fact, The University Club was only able to demonstrate that it held training in or about 1999 and 2005, and that it only issued anti-harassment policies in 2001 and 2005.

This decision reinforces an employer's obligation to provide its employees with a comprehensive anti-discrimination policy, as well as provide thorough anti-discrimination training to all employees.

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.

If the answer is yes, you might want to think twice about it, as potential problems may arise in instances where the supervisor is also the harasser.

When the alleged harasser is in a supervisory position over the plaintiff, the objectionable conduct is automatically imputed to the employer. However, the employer is nonetheless permitted to raise the Faragher/Ellerth affirmative defense to liability and/or damages. This defense states that an employer may avoid liability for harassment that does not involve an adverse employment action (e.g., termination or demotion) if the employer can demonstrate: (1) it took reasonable steps to prevent and promptly correct harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of the employer's preventive or corrective measures.

In Gorzynski v. Jetblue Airways Corp., the Second Circuit (which includes New York) held that it is not unreasonable for an employee to complain of harassment to only his or her harasser if that person is designated in the employer's plan as one of the people with whom to lodge complaints. The court therefore held that an employer is not, as a matter of law, entitled to the Faragher/Ellerth defense simply because an employer's anti-harassment policy provides that the plaintiff could have complained to other people in addition to the supervisor/harasser.

The court made clear that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer's anti-harassment policy, the employee unreasonably failed to take advantage of the employer's preventative measures. There is no requirement that an employee exhaust all possible avenues made available where circumstances warrant the belief that some or all of those avenues would be ineffective or antagonistic.

To limit potential liability, it is always important to consult with an employment attorney when drafting your company's anti-harassment and anti-discrimination policies.

As a New York employment attorney, I always make sure to follow all cases involving the legal rights of employees. In Zakrzewska v. The New School, the New York Court of Appeals (highest court in New York State) recently held that in cases brought under the New York City Human Rights Law (NYCHRL), employers sued for unlawful harassment couldn't invoke the Faragher-Ellerth affirmative defenses set out in previous United States Supreme Court decisions. Employers are thus strictly liable for any unlawful harassment committed by their managers and supervisors under the City's anti-discrimination law.

Since 1998, employers have been able to use the Faragher-Ellerth affirmative defense to avoid liability in unlawful harassment and retaliation cases brought under Federal, State, and City anti-discrimination laws. This defense states that an employer may avoid liability for harassment that does not involve an adverse employment action (e.g., termination or demotion) if the employer can demonstrate: (1) it took reasonable steps to prevent and promptly correct sexual harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of the employer's preventive or corrective measures.

Although the New York Court of Appeals held that the Faragher-Ellerth defense isn't available under the NYCHRL, the Court noted that an employer may still mitigate its damages under the NYCHRL by demonstrating the existence of policies, programs, and procedures for the detection and prevention of unlawful discrimination.