Articles Posted in Sexual Harassment

Earlier this month, a federal judge ruled that neither the New York Human Rights Law (NYHRL) nor the New York City Human Rights Law (NYCHRL) protect unpaid interns from a sexually hostile work environment.

New York Law Does Not Protect Unpaid Interns from Sexual Harassment.jpgLihuan Wang worked as an unpaid intern for Phoenix Satellite TV US, a company that produces Chinese language television news programs in the United States. She alleges one of the company’s bureau chiefs, Zhengzhu Liu, invited her to talk to him about her job performance after a group lunch meeting, and then convinced her to go to his hotel room based on the excuse he needed to drop off some personal belongings. During the car ride to the hotel Mr. Liu made Ms. Wang extremely uncomfortable by discussing the sexual prowess of a black man who had dated a woman he knew. In the hotel he complemented Ms. Liu’s eyes before bringing her to his room. Once in his hotel room he asked her why she is so beautiful, threw his arms around her, attempted to kiss her, and squeezed her buttocks before she left.

After Ms. Wang rejected Mr. Liu’s advances, he suddenly stopped showing any interest in hiring her as an employee, and claimed Phoenix could not hire her because of a supposed “visa quota.” When Ms. Wang subsequently asked Mr. Liu about a potential job with Phoenix, he invited her to go to Atlantic City with him for the weekend, supposedly to discuss job opportunities. Ms. Wang declined his invitation and gave up on the possibility of a paid position with Phoenix.

Earlier this year, the United States Court of Appeals for the Second Circuit clarified how the New York City Human Rights Law (“NYCHRL”) applies to a sexual harassment claim. In the process, the court ruled that Renee Mihalik can proceed with her case against her former employer, Credit Agricole Cheuvreux North America, Inc.

New York City Human Rights Law and sexual harassment.jpgMs. Mihalik, a resident of Hoboken, New Jersey, worked for Cheuvreux in New York City. She claims she experienced sexual harassment from Cheuvreux’s Chief Executive Officer, Ian Peacock. More specifically, she alleged Mr. Peacock ran the office like a “boys’ club,” made sexually suggestive comments, and propositioned her for sex twice. Ms. Mihalik sued Cheuvreux for gender discrimination in violation of the NYCHLR.

Last year, the United States District Court for the Southern District of New York dismissed Ms. Mihalik’s case. It ruled there was not enough evidence to support a sexual harassment claim. But on appeal, the Second Circuit disagreed. It applied an earlier state court case which recognizes the NYCHRL is Broader than State and Federal Anti-Discrimination Laws, and reversed the decision. The NYCHRL was amended in 2005 to require it to be “construed liberally” to accomplish” its “uniquely broad and remedial purposes” regardless of what New York State and federal anti-discrimination laws say.

A question that often comes up in sexual harassment cases is whether you can rely on harassment you learned about secondhand to help prove your case. For example, can you use the fact that one of your coworkers told you that someone else made sexually offensive comments about you to help prove you worked in a sexually hostile work environment?

Sexual Harassment - secondhand evidence.jpgTo prove a sexual harassment case, you need to show you experienced conduct because of your gender that was severe (bad) or pervasive (frequent) enough to make a reasonable woman believe the conditions of her employment were altered and her working environment was hostile or abusive. In determining whether your workplace was sufficiently hostile or abusive, a judge or jury is supposed to consider all of the circumstances, including how frequently the discriminatory conduct occurred, how severe it was, whether it was physically threatening or humiliating, and whether it unreasonably interfered with your job performance.

There are many cases that recognize an employee can rely on secondhand information in a sexual harassment case for certain purposes. For instance, you can rely on evidence that other women were harassed to help show the treatment you experienced was because of your gender, rather than motivated by something else. That is true even if you did not learn about the harassment the other women experienced until after you left your job.

But can you consider evidence of discriminatory conduct you learned about secondhand to prove your workplace was hostile? Most federal courts that have considered the issue have ruled that as long you were aware of the harassment when you were working for the company, you can use evidence of harassment you learned about from someone else to prove that your work environment was hostile. This includes the United States Courts of Appeals for the Second, Fourth, Sixth, and Seventh Circuits, as well as numerous District Court decisions including the District of New Jersey. As a result, for those of you in New York State, at least assuming your case is in federal court, evidence of harassment you learned about secondhand should be available to help prove your workplace was hostile.

However, there is language in a 2008 New Jersey Supreme Court opinion, Godfrey v. Princeton Theological Seminary, which says that when proving her work environment was hostile, a woman must rely on “evidence of bad conduct of which she has firsthand knowledge.” If interpreted literally, that could mean a plaintiff cannot rely on evidence of harassment she learned about secondhand, even if it actually contributed to make her work environment hostile. But in Godfrey, since the harassment occurred before the employees who brought the lawsuit started working for the employer, it was neither directed at nor witnessed by them. As a result, it is not surprising the court found the women could not rely on this evidence to prove their work environment was hostile.

Given New Jersey’s strong public policy in favor of prohibiting sexual harassment from the workplace, I doubt the New Jersey Supreme Court intended to rule that an employee can never rely on harassment she learned about second hand. Rather, evidence of harassment that you learned about secondhand should be relevant as long as it actually contributed to making your work environment hostile. Of course, that will not prevent employers from arguing that this type of evidence is inadmissible under Godfrey.

For more information about the Godfrey case, please read our previous article: New Jersey Supreme Court Clarifies Sexual Harassment Standard: Repeatedly Asking for Dates is Not Sexual Harassment.

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When an employee brings a harassment claim under federal law, one element of her claim is that she was harmed by the harassment. The Third Circuit Court of Appeals recently recognized that an employee can meet that requirement even though she personally sent emails containing sexual jokes at work.

The employee in question, Shannon Mandel, worked for M&Q Packing Corp. as an Inside Sales and Customer Relations Coordinator. She alleges she experienced sexual harassment including:

    sexual harassment of women at work.jpg

  • Calling her “woman,” “darling,” “fluffy,” “missy,” “hon,” “toots,” “too female;” and “too emotional;”
  • Commenting about her body, clothing, and physical appearance;
  • Paying her less than her male peer;
  • A male manager telling her a meeting would take place at his house, and they would conclude their part of the meeting in the morning;
  • Another male supervisor indicting he fantasizes about her while having sex with his wife; and
  • A third male manager asking her on dates even after she told him she was not interested

Ms. Mandel resigned shortly after a fourth male manager called her a “bitch.”

Previously, the District Court had dismissed Ms. Mandel’s sexual harassment claim, finding there was not enough evidence for a jury to conclude she was harmed by the harassment. It relied heavily on the fact that Ms. Mandel frequently used vulgarity and sent emails containing sexual jokes at work. The District Court found this behavior demonstrated Ms. Mandel’s “casual ease with this type of workplace behavior.” While the court recognized that did not necessarily mean Ms. Mandel had not been harmed by the harassment she experienced, it also concluded she had no evidence she had experienced emotional distress as a result of the harassment, or that the harassment made it more difficult for her to perform her job. It also indicated the only time Ms. Mandel complained about the harassment was after she was called a “bitch,” and she made that complaint to a coworker rather than to a supervisor or the Human Resources Department.

In Mandel v. M&Q Packaging Corp., the Third Circuit strongly disagreed. It indicated it was “disturbed” by the District Court’s conclusion that no reasonable jury could find Ms. Mandel was harmed by the harassment. It explained that even though Ms. Mandel engaged in unprofessional conduct by using vulgarity and sending sexual jokes, the harassment she experienced was “often worse and apparently uninvited.” Further, it disputed the District Court’s conclusion that Ms. Mandel only complained about one incident of harassment. In addition, it recognized that Ms. Mandel had stated under oath that the harassment caused her harm. Accordingly, it found a reasonable jury could conclude that Ms. Mandel was harmed by the sexual harassment, and reversed the District Court’s decision to dismiss her sexual harassment claim.

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Earlier this month, New Jersey’s Appellate Division reversed a trial court’s decision to dismiss two employees’ sexual harassment case against their employer, the Mercer County Youth Detention Center. In Wallace v. Mercer County Youth Detention Center, the Appellate Division ruled that a jury needs to decide whether the employer’s anti-harassment policy was effective. Employers can be held liable under the New Jersey Law Against Discrimination (LAD) for sexual harassment committed by a coworker if the employer did not have an effective anti-harassment policy.

Moneck Wallace and Tina Stewart, two female employees who worked for the Mercer County Youth Detention Center, claim a male coworker, Jerel Livingston, sexually harassed them. Ms. Wallace and Ms. Stewart both complained about the sexual harassment. After conducting an investigation, the employer concluded that there was insufficient evidence to support their claims. The two women then filed a sexual harassment lawsuit.

Sexual Harassment at Work.jpgThe trial judge dismissed the case even though it found that Ms. Wallace and Ms. Stewart had enough evidence to prove that Mr. Livingston sexually harassed them. However, it concluded that their employer could not be held liable for the harassment because the alleged harasser was not a supervisor, and Ms. Wallace and Ms. Stewart did not have any evidence that their employer was aware of the harassment but failed to respond to it.

The Appellate Division disagreed with the trial court’s decision to dismiss the case. It explained that an employee might be able to prove her employer is liable for harassment committed by a supervisor or coworker if the employer did not have an effective anti-harassment policy.

The Appellate Division concluded that Ms. Wallace and Ms. Stewart had enough evidence to allow a jury to conclude that Mercer County did not have an effective anti-harassment policy. This included evidence that it:

  1. Did not effectively inform its employees about its sexual harassment policy;
  2. Did not provide adequate anti-harassment training to its employees;
  3. Did not effectively enforce its anti-harassment policy;
  4. Did not conduct a sufficient investigation into the alleged sexual harassment;
  5. Did not use clear criteria when it evaluated whether the sexual harassment claim was substantiated; and
  6. Did not have effective procedures to evaluate whether its sexual harassment policy was effective.

As a result, the Appellate Division sent the case back for a trial at which a jury will decide those issues.

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Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from harassing and otherwise discriminating against employees based on their race, national origin, color, religion, and sex. Under Title VII, when a supervisor harasses an employee, the company often has a defense if it can prove (1) it used reasonable care to prevent and promptly correct harassment, such as by having an anti-harassment policy, and (2) the employee unreasonably failed to take advantage of an opportunity to stop the harassment, such as by not objecting to it under the company’s anti-harassment policy. This defense is often referred to as the Faragher/Ellerth defense, based on the names of the two United States Supreme Court cases that created it.

But would it be reasonable for an employee to complain to the harasser, and nobody else? According to Second Circuit Court of Appeals, the federal appellate court which handles appeals from New York, whether that is reasonable depends on the circumstances of the case.

Specifically, in Gorzynski v. JetBlue Airways Corp., crewmember Diane Gorzynski claims her former employer, JetBlue Airways Corporation, subjected her to sexual harassment. She says her supervisor, James Celeste, sexually harassed her by making massaging gestures with his hands; saying he wanted to massage breasts; indicating he wanted to suck on a particular woman’s breasts; telling a crewmember that his wife was going to a “sex toy” party; asking another female crewmember if she had “gotten enough loving” over the weekend; announcing that Ms. Gorzynski had been a table dancer in the past; announcing that another female crewmember was a former pin-up girl; grabbing Ms. Gorzynski and other female crewmembers around the waist; attempting to tickle Ms. Gorzynski and other female crewmembers; looking at women as if he were mentally undressing them; and frequently making inappropriate sexual comments and gestures at work. The Second Circuit recognized that Mr. Celeste’s behavior could have created a sexually hostile work environment for Ms. Gorzynski.

On February 8, 2011, New Jersey’s Appellate Division ruled that an employee is entitled have a jury decide whether to award punitive damages against her former employer. Prior to the appeal, a jury had awarded the plaintiff, Judith Rusak, $80,108.80 in wages she lost because she experienced sexual harassment and retaliation at work. However, the trial judge did not let the jury decide whether to award punitive damages against Ms. Rusak’s employer, Ryan Automotive.

Punitive damages are intended to punish a defendant for violating the law. As the Appellate Division explained, punitive damages are available against an employer under the New Jersey Law Against Discrimination (LAD) only if the company’s upper management either actually participated in or was willfully indifferent to the discrimination, harassment, or retaliation, and the conduct was “especially egregious.” An employer’s actions are “especially egregious” if it engaged in an evil-minded act with a willful and wanton disregard for the employee’s legal rights.

Sexual Harassment 2.jpgApplying that law, the court in Rusak v. Ryan Automotive, LLC concluded that a jury could find the sexual harassment Ms. Rusak experienced was especially egregious. Specifically, the court ruled that a jury should decide whether Ms. Rusak is entitled to punitive damages based on sexual harassment and retaliation that included supervisors telling Ms. Rusak sexually explicit stories about executives having sex with other executives’ wives; leaving graphic pictures of female genitalia on her desk and sending copies of them to her by e-mail; sending pornography to her at work; calling her a “dumb . . . stupid blonde;” insulting and making crude comments about her; yelling and screaming at her; telling her not to come back to work; taking away her telephone and computer; removing her name from a list of employees eligible for annual awards; telling her she was going to be fired; and other similar abusive behavior.

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The Sexual Harassment
Last week, the New Jersey Appellate Division clarified what a company must prove before its anti-harassment policy can protect it from a sexual harassment claim. The case, Allen v. Adecco, involves Jessica Allen, an employee who worked for the University of Medicine & Dentistry of New Jersey (UMDNJ) through an employment firm, Adecco. According to Ms. Allen, her supervisor, Jacques Coles, sexually harassed her. For example, she says Mr. Coles made sexual comments to her, commented about her clothes, asked about her dates, told her he wanted to date her, described her lips and breasts, described how he thought she would act during a sexual encounter, described a sexual fantasy involving her, used graphic and vulgar language, touched her back, thighs and buttocks, pulled her undergarment, brushed against her, called her “sexy,” and referred to himself as her “future husband.”

Sexual Harassment 1.jpgMs. Allen’s Objections to the Harassment
Ms. Allen also says she objected to Mr. Coles’ harassment. In response, he claimed she wanted him, and liked what he was doing. When Ms. Allen told Mr. Coles she was going to report the harassment, he told her that nobody would believe her and she would lose her job if she reported him. Based on those threats, Ms. Allen did not report Mr. Coles’ sexual harassment for more than a month.

Within hours after Ms. Allan finally filed a complaint about the sexual harassment, UMDNJ transferred Mr. Coles to another position in the same building. However, Mr. Coles continued to harass her and began to retaliate. UMDNJ eventually transferred Ms. Allen to a new position in another building, and the harassment stopped.

UMDNJ’s Anti-Harassment Policy
The trial court dismissed Ms. Allen’s case, finding that because UMDNJ had an anti-harassment policy and stopped the harassment soon after Ms. Allen complained, the company was not legally responsible. However, the New Jersey Appellate Division disagreed, and instead ruled that a jury should decide whether UMDNJ’s anti-harassment policy was “effective” and “active.” Under New Jersey law, only effective and active anti-harassment policies provides a company with a complete defense to sexual harassment committed by one of its supervisors.

According to the Appellate Division’s decision, an anti-harassment is “effective” and “active” only if it:

  • Is published or provided to employees;
  • Requires anti-harassment training;
  • Is completely committed to intolerance of harassment;
  • Is effective in prohibiting harassment;
  • Includes formal and informal complaint structures;
  • Has an effective and practical grievance process;
  • Includes ways for the employer to confirm the policy and complaint procedures are working properly; and
  • Workers, supervisors, and managers are trained how to recognize and prevent unlawful harassment.

The Appellate Division concluded that a jury needed to decide whether UMDNJ’s anti-harassment policy met these requirements. As a result, it sent the case back for a trial at which a jury can decide whether UMDNJ is liable for Mr. Coles sexually harassing Ms. Allen.

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Earlier this year, New York State’s highest court ruled that, under the New York City Human Rights Law (NYCHRL), employers are strictly liable for harassment and discrimination committed by supervisors. The case, Zakrzewska v. The New School, concludes that an affirmative defense available to employers under federal anti-discrimination laws does not apply under the NYCHRL.

The case involves Dominika Zakrzewska, a student at The New School who also worked part time in the school’s Academic Computing Center. Ms. Zakrzewska claims her immediate supervisor, Kwang-Wen Pan, sent her harassing emails and otherwise sexually harassed her. She eventually complained to school officials about the harassment. She also claims Mr. Pan began to secretly monitor her Internet use at work, in retaliation for her accusing him of sexual harassment. Ms. Zakrzewska sued Mr. Pan and The New School in the United States District Court for the Southern District of New York, alleging sexual harassment and retaliation in violation of the NYCHRL.

As the New York Court of Appeals explained, under federal anti-discrimination laws a company can avoid liability for harassment committed by one of its supervisors if it can prove that: (1) the employee did not suffer an adverse employment action, such as being fired, demoted, or given an unfavorable work assignment for a discriminatory reason, (2) the company took prompt and reasonable care to prevent and correct the harassment once it learned about it, and (3) the employee unreasonably failed to use an opportunity the employer provided to help prevent or correct the harassment, such as filing a complaint under the company’s anti-discrimination policy. This defense, which comes from the United States Supreme Court’s decisions in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, is known as the Faragher/Ellerth defense.

In Zakrzewska, the District Judge asked the United States Court of Appeals for the Second Circuit whether the Faragher/Ellerth defense is available under the NYCHRL. The Second Circuit then asked the New York Court of Appeals to answer the same question. The Court of Appeals concluded that the defense is not available under NYCHRL. Rather, under the NYCHRL employers are strictly liable for harassment committed by their managers and supervisors. This means a company can be held liable for harassment by a supervisor even if the employee who was harassed never reported it and the company was unaware the harassment occurred. The Court of Appeals also indicated that employers can be held liable for harassment by non-supervisors if it knew or should have known about the harassment, but either permitted it to happen or failed to immediate take appropriate actions to stop it.

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On June 29, 2010, the Court of Appeals for the Second Circuit, a federal appellate court which handles federal appeals from New York, ruled that a supervisor’s death threats to an employee can be evidence to support a sexual harassment case. The case, Kaytor v. Electric Boat Corporation, involves Sharon Kaytor’s allegations that her boss, Daniel McCarthy, sexually harassed her. Some of Ms. Kaytor’s allegations are sexual in nature. For example, she claims Mr. McCarthy complimented her clothing, told her she looked good for a woman her age, stared at her body, leered at her, made it clear he “had designs” on her, told the entire office she had a “flat ass,” gave her a pussy willow bush as a gift for Administrative Professional’s Day, said she was about to “spread her legs” for her doctor, and referred to her upcoming appointment with her gynecologist as “going where every man wanted to be.” But some of Ms. Kaytor claims are not sexual at all, and have no obvious connection to the fact that she is a woman. Specifically, she claims McCarthy told her he wanted to choke her and that he wanted to see her in a coffin, at least six times each.

The trial court dismissed all of Ms. Kaytor’s claims before her case could get to a trial, finding she had not proven the sexual harassment was severe or frequent enough to create a hostile work environment. It did so partially because it did not count the death threats as part of her sexual harassment claim, since they were not sexual in nature. The trial court also dismissed Ms. Kaytor’s claim that the company retaliated against her when it transferred her to work for another supervisor the day after she complained to the Human Resources (HR) department about the harassment, and in that new position took away some of her job responsibilities, gave her very little work to do, changed her work hours, isolated her, and repeatedly summoned her to unnecessary meetings with HR after she complained to HR about the sexual harassment.

But the Second Circuit disagreed. It ruled that although an employee with a sexual harassment claim must prove the harassment was based on her gender, the harassment does not necessarily have to be based on sexual desire. As a result, although Mr. McCarthy’s death threats were not sexual and did not refer to Ms. Kaytor’s gender, when considered together with all of the other evidence of sexual harassment, a jury could find he threatened her because she is a woman. The Court reached this conclusion even though Mr. McCarthy also threatened to choke a male employee, since otherwise a male employee could get away with sexual harassment by occasionally harassing male workers even though his real targets are women.

The Court also found that Ms. Kaytor should have an opportunity to prove her retaliation claim. It ruled that a jury could find that the company, in effect, demoted her when it reassigned her work and reduced her job responsibilities right after she complained to HR. A demotion can be retaliatory, even when it does not lower an employee’s salary or job title, if it is bad enough to discourage other reasonable employees from coming forward with discrimination or harassment claims. As a result, the appellate court concluded that although the company claims it transferred Ms. Kaytor to separate her from her manager while it was investigating her sexual harassment claim, a jury could find that the company was harassing her. Accordingly, the Second Circuit sent Ms. Kaytor’s case back to the lower court, for a trial.

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