Treating Male and Female Sexual Harassment Victims Differently Creates Factual Issue on Title VII Gender Discrimination Claim

When many people think of sexual harassment, they likely think of a man sexually harassing their female subordinate. However, sexual harassment works both ways – i.e., the harasser, as well as the victim.

That was the case in Hasper v. County of Suffolk, decided by the Eastern District of New York on Feb. 25, 2015. There, the court held that the plaintiff, a retired lieutenant of the Suffolk County Police Department (SCPD), presented sufficient evidence to overcome summary judgment on his Title VII gender discrimination claim.

Plaintiff had complained to his superior that a female police officer under his command, Salerno, made several inappropriate sexual comments. That female officer, as well as another female employee, Cosgrove, also alleged that plaintiff sexually harassed them. (The SCPD determined that both complaints were unfounded.)

The court held that plaintiff presented sufficient evidence to overcome summary judgment on his claim under Title VII, which prohibits discriminatino “against any individual … because of such individual’s … sex”.

The court explained:

Here, Plaintiff alleges that he complained to his superiors at SCPD on at least three separate occasions—by phone, in writing, and in person—about Salerno’s sexually charged statements. Yet Plaintiff’s superiors took no action and did not investigate his complaints. Conversely, when Salerno and Cosgrove complained that Plaintiff sexually harassed them, the SCPD did investigate their claims.

The Court finds that Plaintiff has raised a genuine issue of material fact with respect to his allegation that he was treated less favorably than similarly situated female employees who complained they were being sexually harassed. …

Here, Plaintiff complained to his superior about Salerno’s sexually charged behavior on at least three occasions but his superiors ignored his complaints and refused to take any action. Conversely, after Salerno and Cosgrove claimed that they were sexually harassed by Plaintiff, their allegations were investigated. Defendants argue that Plaintiff, Salerno, and Cosgrove are not similarly situated because Salerno and Cosgrove both filed formal complaints alleging that they were sexually harassed with the SCPD’s sexual harassment officer, but Plaintiff did not. In fact, only Salerno filed a formal sexual harassment complaint. Cosgrove wrote in her retirement papers that she was leaving the police force because of Plaintiff’s sexual harassment and her papers were forwarded to the sexual harassment office before being investigated. … Plaintiff complained to his superiors multiple times about Salerno’s sexually charged conduct and the SCPD did nothing. Although it is unclear from the record whether Plaintiff ever used the term “sexual harassment” when discussing Salerno’s conduct with Inspector Mojica and Chief Moore, the fact that he complained about Plaintiff’s inappropriate behavior on numerous occasions raises a factual question as to whether Defendants acted with a discriminatory intent.

The court also denied defendants’ motion for summary judgment on plaintiff’s First Amendment and Title VII retaliation claims.

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