In Matter of Arcuri v. Kirkland, the Appellate Division, Third Department annulled a decision by a State Division of Human Rights (SDHR) Administrative Law Judge (ALJ) that GPA Development Corporation subjected its employees, Adam Bargy and Orlando Colon, to a hostile work environment based on sexual harassment and retaliated against them for complaining about it.
The ALJ’s determination was based on the following facts:
[D]uring an out-of-town construction project, complainants were assigned to a motel room with their immediate supervisor, Doug Andross. Andross repeatedly brought a woman he had met locally into the motel room, engaging in sex while complainants were in the room. The woman also occasionally invited some of her female friends to the motel room, causing complainants concern about their privacy as well as the security of their personal belongings. They complained several times to various superiors, including petitioner (the president and owner of GPA Development), but to no avail. After complainants had a disagreement with Andross’ woman friend, he fired them.
The court considered whether the ALJ’s findings were supported by “substantial evidence”, noting that:
SDHR’s determinations are entitled to considerable deference due to its expertise in evaluating discrimination claims. Our review is extremely narrow as it is limited to considering whether the determination is supported by substantial evidence, and in such analysis we may not weigh the evidence or reject [SDHR’s] determination where the evidence is conflicting and room for choice exists.
In a case (such as this) involving a hostile work environment as a result of sexual harassment, it must be shown that “the discriminatory conduct occurred due to the complainant’s gender.” In addition:
Although petitioner and all employees on this job were male, the Human Rights Law protects males from gender discrimination. Establishing same-sex harassment has, at times, proved problematic. The typical, but non-exhaustive paths include showing that: (1) the harasser was homosexual and motivated by sexual desire; (2) the harassment was framed in such sex-specific and derogatory terms . . . as to make it clear that the harasser [was] motivated by general hostility to the presence of a particular gender in the workplace; or (3) direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.
Applying this standard, the court annulled the SDHR’s order finding discrimination and retaliation:
Here, neither the written complaints nor testimony of Bargy or Colon set forth any allegations or indication of how Andross’ conduct was motivated by their gender or that their grievances to petitioner were ignored because of their gender. The ALJ’s decision does not refer to any proof supporting a finding that complainants’ gender was relevant to, or a reason for, the conduct. Of the recognized paths for showing same-sex discrimination, the only one even arguably applicable is harassment based on gender-stereotyping. However, the ALJ made no such finding. The only apparent evidence in the record reflective of possible gender-stereotyping is Andross’ stray remark to one complainant to “stop being a wuss and . . . put up with it, you a man.” We need not decide whether this single comment could be sufficient since respondent did not ascribe such an interpretation to the comment and the adopted findings of the ALJ contain only a reference to Andross telling one complainant to “put up with” the situation. We fully agree that Andross’ conduct was crude, coarse and grossly unprofessional; nevertheless, in the absence of proof of gender-based discrimination, such conduct does not establish a claim. We are constrained by the record to conclude that there is not substantial evidence that the conduct was caused by or related in any relevant fashion to complainants’ gender. (Emphasis added.)
Finally, “[s]ince there is not substantial evidence of gender-based discrimination, the finding of retaliation based upon complaints of such discrimination as against the original respondent, GPA Development, necessarily fails.”