Friday, October 21, 2011

Sexual harassment and discrimination


Sexual harassment and discrimination
Robertson v Nassau County, NYS Supreme Court, Justice Lally [Not selected for publication in the Official Reports]

An individual alleges that he or she was the victim of unlawful discrimination at work. The Robertson decision sets out the basic requirements that the employee must satisfy in order to successfully sue an employer for alleged sex discrimination or harassment.

Citing the Court of Appeals' ruling in Totem Taxi v State Human Rights Appeal Board, 65 NY2d 300, Justice Lally said that although Section 296 of the Executive Law provides that it is an unlawful discriminatory practice for an employer, because of the sex of any individual, to discriminate against such individual in compensation or in terms, conditions or privileges of employment, the "employer cannot be held liable for an employee's discriminatory acts unless the employer becomes a party to it by encouraging, condoning, or approving it".

Robertson, a Nassau County Civilian Communications Operator was relived of her radio dispatch duties. She then complained that such action constituted discrimination against her solely because of her gender and that she has been forced to work in a hostile work environment where she has suffered sexual harassment.

As examples of employer discrimination and harassment because of her gender, Robertson alleged that she had been:

1. Falsely accused of incompetence;

2. Improperly charged with lacking required certifications;

3. Given assignments in contravention of her seniority;

4. Denied training and overtime opportunities;

5. Verbally abused by her superior, Sergeant O'Shea;

6. Subjected to surveillance during her breaks;

7. Had her work station relocated against her wishes; and

8. Had not been allowed to have coffee at her workstation.

Nassau asked the court to dismiss Robertson's complaint, contending that there was no evidence any of the events described by Robertson "had anything to do with [her] gender" nor was there any evidence indicating any hostile work environment or sexual harassment.

Justice Lally pointed out that in order to establish a claim of gender-based discrimination, Robertson had to show that she was discriminated against with regard to compensation, terms, conditions or privileges of employment based upon her gender under circumstances that give rise to an inference of unlawful discrimination. Here, however, the court said that "[t]here is no evidence to support [Robertson's] complaint that she was mistreated on account of her gender."

Further, Justice Lally commented that even assuming that Robertson's allegations were sufficient to establish a prima facie case of gender bias, Nassau County had set out a valid reason for relieving Robertson of her radio dispatch duties.

According to the ruling, the County's action was justified because Robertson had withheld important information from supervisors "by both personally judging its importance and because she viewed some of her supervisors as inexperienced and not worthy of being kept informed."
Further, said the court, although Robertson complained that she was discriminated against because of her gender "in that she was monitored, watched, followed and yelled at" by Sergeant O'Shea, she failed to show that his conduct towards her was related to her gender.

Justice Lilly noted that "Sergeant O'Shea monitored all operators' calls and that, as a supervisor, it was his responsibility to do so." As to Robertson's complaint that she was prevented from having food and/or drink at her workstation, the Court said that this reflected Police Department policy rather than a limitation uniquely applied to her. Commenting on Robertson's sexually hostile work environment claim, the court said that to survive summary judgment, Robertson had to show that:

1. She is a member of a protected class;

2. The conduct or words upon which her claim of sexual harassment is predicated were unwelcome;

3. The conduct or words were promoted simply because of her gender;

4. The conduct or words created a hostile work environment which affected term, condition or privilege of her employment; and

5. Nassau County is vicariously liable for such conduct because it condoned such conduct by its supervisory employees.

Again, said the court, Robertson failed to meet this burden, concluding that "[t]here is no evidence at all that the alleged mistreatment [of Robertson] by Sergeant O'Shea, even if characterized as hostile, was prompted by [Robertson's] sex and therefore, the conduct cannot be characterized as discriminatory under the law."

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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