“Sex For Job” Text Message Supports Sexual Harassment Claim; Summary Judgment Denied

In a recent decision, Equal Employment Opportunity Commission v. Draper Development LLC, 15-cv-877, 2018 WL 3384427 (N.D.N.Y. July 11, 2018) – a quid pro quo sexual harassment case – the court denied the parties’ (including defendant’s) motion for summary judgment.

This case arose from a the denial of employment of two female applicants (J.J. and A.R.) and the conditioning of a job offer on sexual favors.

The following is a text exchange between defendant’s manager (Kelly) and one applicant:

Kelly: Hi how badly do you need a job

A.R.: Whos this?

Kelly: An employer

A.R.: Where?

Kelly: In the mall

Kelly: Guess not

A.R.: Ok where in the mall?

Kelly: Would you sleep with the manager to get the job?

A.R.: Maybe if [I know] who this is

Kelly: Subway

Kelly: Im looking for an asst manager

A.R.: Do u even know me?

Kelly: Bang my brains out the job is yours

Defendant fired Kelly for “requesting or demanding sexual favor, accompanied by implied or overt promise of preferential treatment or threats.” It did not hire A.R.

In denying defendant’s motion for summary judgment, the court explained:

[D]ismissal is precluded for at least two reasons. First, it is undisputed that Kelly sent explicit texts to A.R. offering her a position with Draper in exchange for sex. (Dkt. No. 62, Attach. 27 ¶¶ 28-29.) The texts were offensive and unwelcome to A.R. (Id. ¶¶ 30-32, 34-37, 42.) Kelly initially inquired whether A.R. would have sex with him to get “the job,” which can reasonably be inferred to mean the crew member position with Draper that A.R. applied for. (Pl.’s SMF ¶¶ 16-17.) Later in the text exchange, Kelly specifically offered A.R. the assistant manager position in exchange for sex. (Dkt. No. 64, Attach. 8 at 96-101; Attach. 16 at 4.) A reasonable finder of fact could hold that, even if Kelly did not have actual authority, it was reasonable to believe he had apparent authority to offer her the assistant manager position based on the circumstances: A.R. was seventeen, had applied for a position at Draper, provided her contact information on her application, Draper empowered Kelly to access and review applications, and Kelly held himself out as having such authority to hire her for the assistant manager position. (Pl.’s SMF ¶¶ 3, 5, 16-18; Dkt. No. 62, Attach. 27 ¶¶ 28-29.) It is undisputed that A.R. refused Kelly’s sexual advance and Draper did not hire her despite her qualifications. (Pl.’s SMF ¶¶ 20-23, 32, 70.) Such a refusal to hire A.R. for a position clearly constitutes a tangible employment action. See Vance, 570 U.S. at 429. Accordingly, this claim hinges on the factual issue of whether A.R. reasonably believed that Kelly had the authority to hire her, which is best resolved by a jury.