Monday, June 26, 2017

Determining if a complaint alleging sexual harassment based a claim of a continuing violation of New York State's Human Rights Law is timely


Determining if a complaint alleging sexual harassment based a claim of a continuing violation of New York State's Human Rights Law is timely
Lozada v Elmont Hook & Ladder Co. No. 1, 2017 NY Slip Op 04845, Appellate Division, Second Department

Beatrice Lozada, a former volunteer firefighter with the Elmont Hook and Ladder Company No. 1 [Elmont], filed administrative complaints against Elmont with the New York State Division of Human Rights [DHR] alleging that she had been subjected to a hostile work environment as the result of sexual harassment.

After a hearing, the DHR Adjudication Counsel [AC] determined that although the acts of sexual harassment that occurred during Lozada's early service with Elmont "clearly" constituted a hostile work environment, those acts occurred outside of the applicable one-year statute of limitations period set out in Executive Law §297(5). In addition, the AC determined that Lozada had failed to establish a continuing violation concluding that her hostile work environment claim was time-barred.

The Commissioner adopted the AC's findings and recommendation that Lozada's complaint be dismissed. In response, Lozada initiated an Article 78 proceeding challenging the Commissioner's decision with respect to the Commissioner's finding that her hostile work environment claim based upon sexual harassment was untimely.

The Appellate Division sustained the Commissioner's decision, which it found was supported by substantial evidence and was not arbitrary and capricious. The court explained that a review of the record demonstrated that the Commissioner's determination that Lozada failed to establish a continuing violation and thus her sexual harassment claim based a hostile work environment relying the Doctrine of Continuing Violation was misplaced. 
    
Although Lozada did establish the existence of a hostile work environment based on incidents of sexual harassment, the court noted that those incidents occurred outside the limitations period and Lozada failed to prove that a specified related incident took place within the limitations period required to invoke the Continuing Violation Doctrine.

The court explained that a hostile work environment claim is subject to a one-year statute of limitations and a hostile work environment claim, by its very nature, is predicated on a series of separate acts that collectively constitute an unlawful discriminatory practice.

Case law considering the Doctrine of a Continuing Violation indicates that the Doctrine is triggered even though one or more of those unlawful acts might have occurred outside of the limitations period so long as at least one of unlawful acts occurred within the limitations period.

Considering the viability of relying on the Doctrine of Continuing Violation in adjudicating a hostile work environment claim, in Strauss v New York State Dept. of Educ., 26 AD3d 67, the court held that "[i]n the case of a hostile work environment claim, the statute of limitations requires that only one sexually harassing act demonstrating the challenged work environment occur within [the statutory period]" and that "once that is shown, a court . . . may consider the entire time period of the hostile environment in determining liability."

Finding that there was no basis to vacate the Commissioner's determination in this instance, the Appellate Division dismissed Lozada's appeal.

The decision is posted on the Internet at:

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