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July 03, 2019

Litigating allegations of same-sex sexual harassment


In this action to recover damages for alleged employment discrimination on the basis of sex and unlawful retaliation in violation of Administrative Code of the City of New York §8-107, Plaintiff, a civilian employee of the New York City Police Department [NYPD], alleged that a same-sex fellow civilian employee [Co-worker] of NYPD sexually harassed her by making comments about her appearance and by touching her inappropriately.

Plaintiff further alleged, among other things, that her supervisors aided and abetted the alleged harassment and, or, retaliated against her for her complaints regarding Co-worker's conduct.

The New York City Human Rights Law prohibits discrimination in employment based upon gender, and prohibits aiding and abetting discrimination or retaliation for an employee's protected activity in response to discrimination. These protections include "prohibitions on harassment between members of the same sex," as alleged here by Plaintiff.

The Appellate Division explained that demonstrations of same-sex harassment include showing that:

(1) "the harasser was homosexual and motivated by sexual desire;"

(2) "the harassment was framed in such sex-specific and derogatory terms ... as to make it clear that the harasser [was] motivated by general hostility to the presence of a particular gender in the workplace;" or

(3) "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace."

Addressing a motion for summary judgment on behalf of NYPD and certain of its named staff members [City Defendants], the Appellate Division said that an action brought under the NYCHRL must be analyzed under both the framework of McDonnell Douglas Corp. v Green, 411 US 792, and under the newer mixed motive framework, which imposes a lesser burden on a plaintiff opposing such a motion," citing Persaud v Walgreens Co., 161 AD3d 1019.

The court also noted that a defendant's motion for summary judgment dismissing a claim under the NYCHRL "should be granted only if no jury could find [the] defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, direct evidence, or some combination thereof."

Here City Defendants demonstrated, prima facie, that "there was no evidentiary route" that could allow a jury to find that Co-worker was motivated by sexual desire or by general hostility to the presence of women in the workplace, or that City Defendants treated male and female coworkers differently. Further, observed the Appellate Division, evidence established that, in response to the Plaintiff's complaint, City Defendants took prompt remedial action and Plaintiff failed to raise a triable issue of fact.

Accordingly, said the court, it agree with the Supreme Court's granting certain branches of City Defendants' motions for summary judgment dismissing those causes of actions alleging harassment by City Defendants and that City Defendants abetted  harassment in violation of the NYCHRL insofar as asserted against each of the named City Defendants.

Addressing Plaintiff's claims of retaliation under the NYCHR, the Appellate Division indicated that "[T]o make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct."

In this instance the Appellate Division said that "even assuming that the Plaintiff had engaged in a protected activity under the NYCHRL, City Defendants demonstrated, prima facie, ... that the Plaintiff could not establish that City Defendants were aware of such activity, or that there was a causal connection between that activity and the alleged acts of retaliation and Plaintiff failed to raise a triable issue of fact.

The decision is posted on the Internet at:

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