Sexual Harassment/Hostile Work Environment Lawsuit (Based in Part on Customer Conduct) Against Urban Outfitters Continues

The Southern District of New York recently denied defendants’ motion to dismiss plaintiff’s complaint alleging sexual harassment, hostile work environment, and retaliation against Urban Outfitters.

In Swiderski v. Urban Outfitters, 14-cv-6307, 2015 WL 3513088 (SDNY June 4, 2015), the court held that the plaintiff pleaded an actionable hostile work environment claim based on the conduct of two customers.

The first customer allegedly videotaped female skirt-wearing employees from underneath as they walked up the stairs; the second allegedly assaulted plaintiff.

Judge Oetken explained:

With respect to the first customer, Urban Outfitters argues that it lacked “control” over him because he is not alleged “to have visited the store on even one occasion prior to the incidents in question.” Swiderski alleges, however, that her supervisors told her about “several incidents involving the same male customer who repeatedly came to [the] store, sat underneath the stairs, and openly stared up the skirts of female … staff.” Taking this well-pleaded factual allegation as true—as the Court must at this stage—Swiderski has pleaded that the first customer was, in fact, known to Urban Outfitters’s management as a problem. From the facts as pleaded in the Complaint, one could conclude that Urban Outfitters failed reasonably to prevent him from being a problem again.

With respect to the second customer, Urban Outfitters makes the same argument. This time, though, it is a reasonable one. There is no allegation that the second customer was known to management or had ever visited the store. But Swiderski alleges that no one “responded” during the assault. The Complaint is unclear as to whether Swiderski called out for help, whether she was visible to Urban Outfitters’s security staff, or whether there was anything additional that security could have done. This omission is troubling because answers to these questions would likely be important in determining the adequacy of Urban Outfitters’s response. Nonetheless, as pleaded in the Complaint, these facts render sufficiently plausible Swiderski’s argument that the response was inadequate. The allegation that someone failed to “respond[ ]” to something suggests—at least to the level of plausibility—that the person failed to respond to something about which he had some level of awareness.

The court also denied defendant’s motion to dismiss plaintiff’s co-worker harassment, supervisor harassment, and retaliation claims.