Town Not Vicariously Liable for Co-Worker’s Alleged Sexual Harassment; Summary Judgment Affirmed

In Croci v. Town of Haverstraw, No. 2015-01366, 2017 WL 99235 (N.Y. App. Div. 2d Dept. Jan. 11, 2017), a New York appellate court upheld the dismissal of plaintiff’s sexual harassment case. This decision is instructive on when an employer will be vicariously liable for sexual harassment under the New York State Human Rights Law.

Here are the facts, as summarized by the court:

The plaintiff alleged that she was sexually harassed by a coworker while she was employed by the defendant Town of Haverstraw. After she complained about the alleged sexual harassment to her supervisor, the Town arranged for an investigation by an outside party. Based on the findings of the investigation, the Town Supervisor determined that [a]s a result of a lack of corroboration and lack of reliability, I find that [the plaintiff was] not the victim of sexual harassment. The Town Supervisor found that both the plaintiff and the coworker had conversations of a sexual nature in the workplace, and they were advised to cease doing so. The plaintiff alleged that the coworker’s harassment continued. In October 2011, the plaintiff commenced this action, inter alia, to recover damages for employment discrimination on the basis of sex in violation of Executive Law § 296. Subsequently, the Town arranged for a second investigation into the alleged harassment by a different outside party, which resulted in disciplinary charges being brought against the coworker, his transfer to another facility, and prohibition of any contact between him and the plaintiff.

The law provides:

Under [the New York State Human Rights Law, codified at New York] Executive Law § 296, [a] hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, both pursuant to an objective standard, and as subjectively perceived by the plaintiff. An employer cannot be held liable for an employee’s discriminatory act unless the employer became a party to it by encouraging, condoning or approving it. (Emphasis added.)

Applying the law to the facts, the court concluded that “the Town made a prima facie showing of entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it by establishing that it did not encourage, condone, or approve the alleged sexual harassment, and that, once it was aware of the plaintiff’s complaints, it took prompt action to investigate and remedy the situation” and that “[i]n opposition, the plaintiff failed to raise a triable issue of fact.”