Faragher/Ellerth Defense

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In Ferrara v. Sterling, Inc., No. 23-0454-cv, 2024 WL 485742 (2d Cir. Feb. 8, 2024), the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s award of summary judgment to defendant on plaintiff’s age-based hostile work environment claims. The court held that even if the plaintiff had established the existence of a…

Read More Application of Faragher/Ellerth Defense Justifies Summary Judgment Dismissal of Age-Based Hostile Work Environment Claims, Second Circuit Holds
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In Sherman-Harris-Golson v. Forest Park Municipal Authority, Case No. CIV-21-466-F, 2023 WL 8704736 (W.D.Okla. Dec. 15, 2023), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s claim of hostile work environment sexual harassment asserted under Title VII of the Civil Rights Act of 1964. As to the issue of whether the alleged…

Read More Hostile Work Environment Sexual Harassment Claim, Arising From Sexual Assault, Survives Summary Judgment
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In Wallace v. Performance Contractors, Incorporated, 2023 WL 21856 (5th Cir. Jan. 3, 2023), the court reversed the lower court’s order dismissing plaintiff’s hostile work environment sexual harassment claim. As to whether the alleged conduct was severe or pervasive, the court explained: We agree with the district court that a reasonable jury could find that…

Read More Sexual Harassment Claim Survives Summary Judgment; Conduct Was “Severe or Pervasive” and Defendant Was Not Entitled to Faragher/Ellerth Defense
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In Sears-Barnett v. Syracuse Community Health Center, Inc., 16-CV-426, 2021 WL 1202206 (N.D.N.Y. March 31 2021), the court, inter alia, dismissed plaintiff’s sexual harassment / hostile work environment claim. This case is an example of the “Faragher Ellerth” affirmative defense in action, and generally illustrates the risk associated with failing to timely assert a harassment…

Read More Sexual Harassment Complaint Dismissed; Court Cites “Two Years of Silence” Pre-Complaint
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In Pardovani v. Crown Building Maintenance Co., 2020 WL 2555280 (SDNY May 20, 2020), the court denied defendants’ motion for summary judgment on plaintiff’s race-based hostile work environment claim. From the decision: Pardovani offers evidence to suggest that, far from an occasional occurrence, the word “nigger,” and derivations thereof, were used frequently and offensively in…

Read More Race-Based Hostile Work Environment Claims Survive; Evidence Included the Use of the “N-Word”
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In Barbini v. First Niagara Bank, N.A., 16-cv-7887, 2019 WL 1922041 (S.D.N.Y. April 29, 2019), the court held, inter alia, that defendant waived the attorney-client privilege in connection with asserting the Faragher/Ellerth defense to plaintiffs’ sexual harassment claims. Under that defendant may escape liability if it can show two things, namely, (1) the employer exercised reasonable care…

Read More Invocation of Faragher/Ellerth Defense in Sexual Harassment Case Waives Attorney-Client Privilege, Court Finds
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In a recent decision, Equal Employment Opportunity Commission v. Draper Development LLC, 15-cv-877, 2018 WL 3384427 (N.D.N.Y. July 11, 2018) – a quid pro quo sexual harassment case – the court denied the parties’ (including defendant’s) motion for summary judgment. This case arose from a the denial of employment of two female applicants (J.J. and A.R.) and…

Read More “Sex For Job” Text Message Supports Sexual Harassment Claim; Summary Judgment Denied
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Sexual harassment cases are fact- and context-specific. There is no “bright line rule” as to when a comment or a touch “cross the line” from non-actionable to actionable. Such claims can be based on comments, physical touching, or some combination of the two. A recent decision, Batten v. Global Contact Services, LLC, 15-cv-2382, 2018 WL…

Read More Sexual Harassment / Hostile Work Environment Based on “Hug” Was Actionable, Court Holds
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In MacCluskey v. University of Connecticut Health Center, 2017 WL 6463200 (2d Cir. Dec. 19, 2017) (Summary Order), the Second Circuit affirmed the lower court’s judgment following a jury verdict in favor of plaintiff on her sexual harassment (hostile work environment) claim under Title VII of the Civil Rights Act of 1964. The court framed…

Read More Sexual Harassment Jury Verdict Upheld; Co-Worker’s Sexual Harassment Imputable to Employer
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In Lamarr-Arruz & Ansoralli v. CVS Pharmacy, Inc., 15-cv-04261, 2017 WL 4280690 (S.D.N.Y. Sept. 26, 2017), the court rejected the defendant’s reliance on the so-called “Faragher/Ellerth affirmative defense” to plaintiff’s hostile work environment claim under 42 U.S.C. § 1981.[1]I wrote about the court’s evaluation of the first element of plaintiff’s hostile work environment claim under section 1981…

Read More Faragher/Ellerth Defense Inapplicable to Plaintiff’s Hostile Work Environment Claim Under 42 U.S.C. § 1981
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