New York Sexual Harassment Lawyer Blog

On July 27, 2009, the U.S. Court of Appeals for the Second Circuit asked the New York Court of Appeals to answer the following question: Does the affirmative defense to employer liability articulated in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), apply to sexual harassment and retaliation claims under section 8-107 of the New York City Administrative Code?

Under Faragher/Ellerth, employers are afforded an affirmative defense under federal law to vicarious liability for discriminatory harassment by a supervisor that does not result in a tangible employment action if the employer can show it exercised reasonable care to prevent and correct alleged discriminatory conduct and the employee unreasonably failed to take advantage of the protective measures afforded by the employer.

The language of the New York Human Rights Laws is in direct conflict with the federal Faragher/Ellerth affirmative defense. The Second Circuit correctly called on New York’s highest court to resolve this issue because of “the absence of authoritative state court decisions, the importance of the issue to the state, and the capacity of certification to resolve this litigation.”

On June 11, 2009 The EEOC (U.S. Equal Opportunity Commission) entered into an agreement with prominent national retailer Dillard’s Inc., in settlement of a lawsuit regarding incidents of sexual harassment in violation of Title IV of the Civil Rights Act. As part of the agreement, Dillards is to pay $11,000 in damages to the victims of sexual harassment as well as reform their workplace policies to comply with Title IV.

While the media typically depicts sexual harassment victims as females, males also fall victim to sexual harassment in the workplace. The Dillard’s case involved male on male sexual harassment at a Dillard’s in Florida. According to the EEOC, the Dillard’s store at the Fashion Square Mall in Orlando permitted a sexually hostile work environment for its employees. The specific incident involved a male supervisor that engaged in verbal as well as physical sexual harassment of two Dillard’s employees, a male sales associate and a male dockworker. The supervisor exposed himself to the employees, sexually propositioned them, and made explicit sexual and derogatory comments to them. While both men complained about the foregoing conduct, Dillard’s took no steps to resolve it.

The suit was originally filed in the U.S. District Court for the Middle District of Florida (Civil Action No. 6:07-cv-1496-PCF-KRS) in September 2007. The terms of the settlement provide that in addition to paying the victims $110,000, the Dillard’s store will provide its staff with booklets describing its anti sexual harassment and retaliation policies, conduct training for all employees on the matter, and train employees that will specifically be responsible for investigating sexual harassment complaints. Furthermore, Dillard’s will submit to monitoring by the EEOC for the next three years, and will post a notice about the resolution of this case.

The EEOC recently stated that employers ought to be more vigilant in ensuring that male employees are not being subjected to working in sexually hostile environments since sexual harassment cases involving male victims have increased sharply over the past decade.