Judicial opinions are often difficult to distill into discrete bullet points. However, a recent decision can be taken as a cautionary instruction to male supervisors, for example,
- not instruct their female subordinates, in writing, to remember that they are “a man first and a supervisor second” and that being “sex[y]” is “crucial to the position”, and
- not write letters, purportedly on behalf of their female subordinate, accusing themselves of sexual harassment to illustrate a preference for women rather than men.
I believe the formal legal term for this is “Duh”. It’s Latin.
In Tidball v. Schenectady City Sch. Dist., decided November 20, 2014, the Appellate Division, Third Department affirmed the lower court’s denial of defendants’ motion for summary judgment on plaintiff’s sexual harassment allegations under the New York State Human Rights Law, Executive Law § 296(1)(a).
Specifically, the court held that there was sufficient evidence to present a triable issue as to whether the defendant school district should have known that one of its employees, Steven Raucci, was sexually harassing his secretary (the plaintiff).
The law provides:
Pursuant to Executive Law § 296(1)(a), it is “an unlawful discriminatory practice  [f]or an employer . . ., because of an individual’s . . . sex, . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment”. An employee may succeed on a sexual harassment claim pursuant to Executive Law § 296(1)(a) upon establishing that he or she is a member of a protected group, is subjected to unwelcome sexual harassment based on his or her gender that affects a term, condition or privilege of his or her employment, and that the employer “knew or should have known of the harassment and failed to take remedial action”. An employer will be liable for “an employee’s discriminatory act [where] the employer became a party to it by encouraging, condoning, or approving it,” and the term condonation includes, as relevant here, “[a]n employer’s calculated inaction in response to discriminatory conduct”.
In this sexual harassment case,
plaintiff worked as Raucci’s secretary. Raucci, the facilities’ supervisor, reported directly to defendant’s human resources administrator, Michael Stricos, as well as to defendant’s assistant superintendent for business, Michael San Angelo. On June 5, 2008, Raucci sent plaintiff a memorandum on defendant’s letterhead informing her that, effective July 7, 2008, she would commence her position as “messenger” and congratulating her on her new appointment. The memorandum indicated that it was copied to Stricos, San Angelo and Patrick Paratore, a facilities assistant. On the effective date of her appointment, Raucci sent plaintiff a memorandum on defendant’s letterhead containing the exact language as the June 5, 2008 communication, with a list of “[a]dditional conditions” of the appointment. These conditions included demands to “[t]ake time everyday to keep your appearance pleasing for your supervisor[,] . . . [a]lways remember that your supervisor is a man first and a supervisor second and he should be treated as such in that sequence[, and b]eing attractive, sensitive and classy with a touch of sexiness, are crucial to the position.” (Emphasis added.)
This, my friends, is what we plaintiffs’ lawyers call a “smoking gun”.
In addition, while plaintiff never directly informed anyone in defendant’s administration that she was being sexually harassed by Raucci,
early in plaintiff’s work with Raucci, he wrote a letter to look as if plaintiff had written it, and asked her to hand-deliver it to Stricos. The mock letter, which accused Raucci of sexually harassing plaintiff, was apparently meant as a joke because, at that time, a sexual harassment suit was pending against Raucci by a former male employee. According to plaintiff, the letter was intended “to prove to . . . Stricos that [Raucci] harassed women, that he liked women, not men.”
Although the court concluded that defendant met its “initial burden of establishing as a matter of law that it did not know, nor should it have known, of Raucci’s alleged conduct”, it held that
viewing the evidence in the light most favorable to plaintiff, she has successfully raised triable issues of fact as to whether defendant should have known of Raucci’s harassing conduct, based on, among other things, the contradictory evidence as to whether Stricos and San Angelo received Raucci’s email regarding plaintiff’s appointment as messenger, the inappropriate and suggestive nature of his mock letter to Stricos, and Raucci’s refusal to allow plaintiff to meet alone with Stricos.