New York Sexual Harassment Lawyer Blog

The New York City Human Rights law prohibits discrimination based on sexual orientation. This ban includes perceived sexual orientation as well, meaning that an employer may not discriminate against an employee that it simply senses is homosexual. Recently, the Court of Appeals in the United Kingdom found that a man forced to leave his job because of merciless taunting by his colleagues who took him to be a gay, won the right to claim compensation from his employers. In this case, a married man with children alleged that he was tormented by his coworkers because he had attended an all-boys boarding school. His coworkers knew that he was not gay, but taunted him nevertheless because of homophobia and associated stereotypes. In finding that the victim’s claims came within the United Kindom’s regulations, the Court held that the legislature in prohibiting sexual harassment in the workplace could not possibly have intended that a victim be required to declare his sexual orientation in order to establish that harassment was based on sexual orientation.

The U.S. Supreme Court issued a decision on January 26, 2009, which is sure to be the subject of man future blog posts. In Crawford v. Metropolitan Government of Nashville, the plaintiff was a former municipal employee who had been terminated. The company stated that it had fired the employee for “embezzlement.” The employee, however, believed that she was terminated because she participated in an investigation into a sexual harassment complaint asserted by a co-worker. Crawford stated that she was being punished for having confirmed that the complaining employee was actually sexually harassed.

The issue, therefore, was not whether the employee who asserts a claim was protected by workplace retaliation laws – which she would be – but whether an employee who does not herself assert a claim but merely participates in the investigation is also protected.

The Court unanimously agreed that such an employee was protected. Justice Souter wrote that “When an employee communicates to her employer a belief that the employer has engaged in a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.” The Court recognized, therefore, that just by confirming that sexual harassment occurred, the employee was opposing it.

While this decision has long been the rule in New York, both the district and appellate courts in Crawford had reached the opposite conclusion. We are pleased to see that the U.S. Supreme Court is ensuring that employees who in any way oppose discrimination in the workplace are protected against workplace retaliation.

The New York Times recently reported that Nascar has settled a multi-million dollar race discrimination and sexual harassment suit with a former employee. Among the egregious conduct claimed by Mauricia Grant, was that two employees exposed themselves to her and that she was called “Nappy Headed Mo” and “Queen Sheba” by other Nascar employees.

The conduct to which Ms. Grant was subjected is not uncommon. In many workplaces, employment discrimination is something that has not been eradicated. In fact, discrimination in the workplace is showing no signs of slowing down. EEOC statistics from recent years demonstrate this fact. The increase in claims filed for both employment discrimination and workplace retaliation claims confirm our long-standing belief that employment discrimination is a disease that must be eliminated from the workplace.