In Novak v. Waterfront Comm’n of NY Harbor (SDNY March 1, 2013), the Southern District dismissed plaintiff’s sexual harassment claim. What makes this case unique is that the alleged harasser was the plaintiff’s ex-boyfriend.
The court reiterated that “[t]he sine qua non of a gender-based discriminatory action claim under Title VII is that ‘the discrimination must be because of sex.” (Emphasis in original).
Plaintiff failed to make that showing:
[T]here is simply no evidence that … Novak was subjected to unfair treatment because she is a woman. There is evidence, however, that she was treated unfairly due to animus resulting from her decision to end her consensual relationship. Indeed, as Novak testified at her deposition, she believes the discrimination to which she was allegedly subjected stems directly from her decision to break up with Politano.
This does not mean that every time the harasser is plaintiff’s ex-lover plaintiff will lose, nor does it grant carte blanche to a harasser to exact revenge on his/her ex. It does, however, mean that in every case the facts must be carefully analyzed to determine whether the relevant statutes have been violated.
(The court also dismissed plaintiff’s State and City Human Rights Law claims because the Waterfront Commission, a bi-state agency, was beyond the reach of those statutes as a matter of law.)