Is a New York City Employer Liable for a Non-Supervisor's Sexual Harassment?

New York City employers have a duty to identify and address sexual harassment in the workplace. Some employers think this means they only need to ensure that managers do not harass employees under their direct supervision. In fact, an employer can be held responsible for the “discriminatory conduct” of any employee towards another employee, even when there is not a direct supervisory relationship.

Judge Refuses to Dismiss Lawsuit Against Hotel Operator Over Server's Harassment Allegations

Consider this recent decision from a federal judge here in Manhattan. This is taken from a pending sexual harassment lawsuit, Feldesman v. Interstate Hotels LLC. The plaintiff previously worked as a cocktail server at a hotel bar managed by the defendant. During the course of her employment, the plaintiff alleged multiple instances in which she was subjected to sexual harassment by another employee, who worked as a bartender but did not directly supervise the plaintiff.

The harassment itself took many forms, according to the plaintiff. She alleged that the bartender “made various comments” about “the size of her breasts” and “asked her to rate women customers' appearances.” She also said the bartender “didn't like that I was good at my job and that I was a woman” and that he acted “aggressively” toward her.

The plaintiff said that managers at the bar “had witnessed” these acts of sexual harassment and that she reported the bartender's actions to management orally. But, the plaintiff maintained, management “just shrugged it off” and failed to take any corrective action.

Eventually, the plaintiff did file a written complaint via email. Several other staff members also complained about the bartender's behavior. But management again took no action–and in fact, ultimately fired the plaintiff and two other employees, ostensibly for violating the company's “tip and gratuity policies.” The plaintiff then sued the defendant under the New York City Human Rights Law, alleging she was a victim of sexual harassment and that her termination was actually retaliation for complaining about the bartender's actions.

The defense moved for summary judgment on a number of grounds, which the judge denied. One rejected argument was that “even if [the bartender] had treated [the plaintiff] less well than her colleagues because of her gender and even if this treatment amounted to more than just petty slights and trivial inconveniences, no jury could find [the defendant] liable because [the bartender] was not her supervisor and because [the defendant] took prudent investigative and corrective action.”

Under the NYCHRL, the judge explained, an employer can still be liable for a non-supervisor's harassment if it “failed to take reasonable steps to eliminate the harassment.” Here, the plaintiff initially made an oral complaint to a manager in 2012, yet the defendant did not conduct any form of an investigation until nearly three years later after the plaintiff filed multiple written complaints. Based on this, a judge said a jury could find the defendant did not take “remedial and prompt action.”

Speak with a New York City Sexual Harassment Lawyer Today

No person should ever be forced to endure sexual harassment in the workplace. A qualified New York City employment attorney can advise you on what steps to take when your employer refuses to take your harassment complaints seriously. Contact the Nisar Law Group, P.C., at 646.760.6493 today to schedule an initial consultation with a member of our legal team.

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