Desire Not to “Offend” Alleged Harasser Properly Found to Result in Condonation of Racial Discrimination

In N.Y. State Div. of Human Rights v. Besdad, Inc., No. 2014-08481, 2016 WL 6269891 (N.Y. App. Div. 2d Dept. Oct. 26, 2016), the court upheld a determination by the NYS Division of Human Rights that the respondents discriminated against the complainant on the basis of his race and color by subjecting him to a hostile work environment. (The court struck down the finding of retaliation, however.)

From the decision:

Here, the determination of the Commissioner of the New York State Division of Human Rights (hereinafter the Commissioner) that the respondents discriminated against the complainant on the basis of his race and color by subjecting him to a hostile work environment while he was employed by the respondent Besdad, Inc., doing business as Coopersmiths Restaurant (hereinafter Coopersmiths), is supported by substantial evidence. Moreover, the Commissioner properly found the respondent Bruce Schwartz individually liable as an owner of Coopersmiths. The Commissioner also properly found that Coopersmiths was liable for failing to intervene when its owners became aware of the racial discrimination. The owners’ failure to intervene based on a desire not to offend the employee harassing the complainant, or to ruin that employee’s upcoming vacation days, rose to the level of a knowing, after-the-fact forgiveness or acceptance of the offense, thus constituting condonation of the racial discrimination.

The court held, however, that the determination that respondents retaliated against the complainant for having engaged in protected activities was not supported by substantial evidence:

This determination was based on a finding that the complainant was fired one day after engaging in protected activity, namely, objecting to racial discrimination. However, there was no evidence that the complainant objected to any racial discrimination on the day before he was fired. Rather, the complainant’s hearing testimony established that his last objection to such discrimination occurred approximately three months before he was fired, and no evidence was presented to show that the complainant was fired for that earlier objection.

At the end of the day, the court upheld awards for back pay in the amount of $27,107 plus interest and for mental anguish and humiliation in the amount of $15,000 plus interest.

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