Sexual Harassment (Hostile Work Environment) Claim Survives Summary Judgment; Court Differentiates Between Verbal and Physical Harassment: Part II

In Soto v. CDL (New York) L.L.C., 2020 WL 2133370 (S.D.N.Y. May 5, 2020) (J. Failla), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim. In a prior blog post, I addressed the court’s conclusion that plaintiff raised a triable issue issue of fact as to whether plaintiff was subjected to a hostile work environment. Here I’ll address the court’s assessment of whether this conduct may be imputed to the employer.

“In addition to raising a triable issue as to whether she was subjected to a hostile work environment, in order to survive summary judgment, Plaintiff must also show that there is a specific basis for imputing the conduct creating the hostile work environment to the employer.” 2020 WL 2133370, at *12.

Here, since the alleged harassers were not “supervisors,” the defendant could be liable only for its own negligence under Title VII of the Civil Rights Act of 1964. Specifically, plaintiff was required to “demonstrate that Defendant either (i) failed to provide a reasonable avenue for complaint or (ii) knew, or in the exercise of reasonable care should have known, about the harassment [and] yet failed to take appropriate remedial action.” It was not disputed that defendant provided a reasonable avenue for complaint. It was also not deniable that defendant took “some action” – including offering plaintiff a “panic button”, offering a “buddy system”, and bringing in a “specialist for sexual harassment training”, the actions undertaken by defendant were not, as a matter of law, sufficiently reasonable.

The New York State Human Rights Law imposes a stricter standard for imposing liability; specifically, under that statue, “an employer cannot be held liable under state law for an employee’s discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it.” Applying the law, the court held that there was “ample room to conclude from the record that Defendant condoned the harassers’ actions, either through forgiveness and acceptance or calculated inaction.” For example, defendant took no disciplinary action against one of the alleged harassers.

Finally, the court found that the alleged conduct could be imputed to the employer under the New York City Human Rights Law. That statute provides that “[a]n employer will be held liable … for the discriminatory acts of non-supervisory co-workers … if … the employer knew of the employee’s … discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action.” Here, there was “no question that Defendant knew of its employees’ discriminatory conduct, and for the many reasons already discussed, a reasonable jury could find that Defendant either acquiesced in that conduct or failed to take immediate and appropriate corrective action.”