In Matter of AMG Managing Partners v. NYS Div. of Human Rights, No. TP 16-01391, 2017 WL 1187641 (N.Y. App. Div. 4th Dept. Mar. 31, 2017), the court upheld a New York State Division of Human Rights determination that the complainant was subjected to hostile work environment sexual harassment, but reduced the emotional distress damages award to $25,000 (from $65,000).
From the decision:
Contrary to petitioners’ contentions, the determinations that complainant was subjected to a hostile work environment, that petitioners [] were informed of the sexually inappropriate conduct directed toward complainant and condoned that conduct, and that complainant was constructively discharged from employment are supported by substantial evidence. That complainant may have used sexually inappropriate language or engaged in sexually inappropriate conduct with a longtime personal friend who worked in the same office does not preclude a finding of hostile work environment inasmuch as the relevant inquiry is whether [complainant] welcomed the particular conduct in question from the alleged harasser[s]. As the [Second Circuit] in Swentek [v. USAir, Inc., 830 F.2d 552 (2d Cir. 1987)] held, complainant’s use of foul language or sexual innuendo in a consensual setting does not waive her legal protections against unwelcome harassment. (Emphasis added.)
As to the award for mental anguish and humiliation, the court rejected the petitioner’s heavy reliance “on the fact that complainant failed to submit documentary evidence to corroborate her testimony that she sought counseling 33 times in the four months following her constructive discharge”, holding that “such testimony does not require corroboration inasmuch as proof of mental anguish may be established through the testimony of the complainant alone.”
However, while the complainant’s conduct did not undermine the liability finding, the court did use that fact (among others) to reduce the emotional distress damage award from $65,000 to $25,000.