NYSDHR Hostile Work Environment Sexual Harassment Claim Properly Dismissed as Time-Barred, Court Holds

In Matter of Lozada v. Elmont Hook & Ladder Co. No. 1, 2017 NY Slip Op 04845 (N.Y. App. Div. 2d Dept. June 14, 2017), the court confirmed a determination by the New York State Division of Human Rights (NYSDHR) dismissing plaintiff’s sexual harassment claim as time-barred.

The court summarized the law pertaining to administratively-filed hostile work environment claims:

A hostile work environment claim is subject to a one-year statute of limitations (see Executive Law § 297[5]; Matter of Queensborough Community Coll. of City Univ. of N.Y. v State Human Rights Appeal Bd., 41 NY2d 926). However, a hostile work environment claim, by its very nature, is predicated on a series of separate acts that collectively constitute an unlawful discriminatory practice (see National Railroad Passenger Corporation v Morgan, 536 US 101, 117). Thus, under the “continuing violation” doctrine, even though one of those acts might have occurred outside of the limitations period, the claim will be considered to be timely as long as one of the acts occurred within the limitations period (id. at 117-118). “[A] continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice” (Clark v State of New York, 302 AD2d 942, 945; see Kimmel v State of New York, 49 AD3d 1210; Cornwell v Robinson, 23 F3d 694, 704 [2d Cir]). Based upon this doctrine and the nature of a hostile work environment claim, “[i]n the case of a hostile work environment claim, the statute of limitations requires that only one sexually harassing act demonstrating the challenged work environment occur within [the statutory period]” and that “once that is shown, a court . . . may consider the entire time period of the hostile environment in determining liability.

Applying the law, the court held:

[H]ere, a review of the record demonstrates that the Commissioner’s determination that she failed to establish a continuing violation, such that the sexual harassment based hostile work environment claim was time-barred, is supported by substantial evidence and is not arbitrary and capricious. While the petitioner established at the hearing a hostile work environment premised upon incidents of sexual harassment, those incidents occurred outside the limitations period, and she failed to prove that a specified related incident took place within the limitations period, which would have invoked the continuous violation doctrine (cf. Fitzgerald v Henderson, 251 F3d 345 [2d Cir]). Hence, we discern no basis to disturb the Commissioner’s determination.

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