Rejecting a Supervisor’s Sexual Advances is “Protected Activity” For Purposes of a Retaliation Claim, Court Holds

In Percy v. The State of New York (Hudson Valley DDSO), Local 412 of the CSEA, Inc., Local 1000, AFSCME AFL-CIO, Basil Townsend, 264 F.Supp.3d 574, 585 (S.D.N.Y. 2017), the court explained:

Courts are split on the question of whether rejecting unwanted sexual advances constitutes protected activity. See Little, 210 F. Supp. 2d at 385-86 (noting district courts are split on issue of whether resisting an employer’s sexual advances constitutes protected activity for purposes of establishing retaliation, collecting cases reflecting split, and finding that such a rejection does constitute protected activity on basis that “[t]he prohibition against retaliation is intended to protect employees who resist unlawful workplace discrimination[;] [s]exual harassment by an employer or supervisor is an unlawful practice, and an employee’s refusal is a means of opposing such unlawful conduct”); see also Pedrosa v. City of New York, 13-CV-01890 (LGS), 2014 WL 99997, at *9 n.1 (S.D.N.Y. Jan. 9, 2014) (collecting cases reflecting split for retaliation claim under NYSHRL).

Applying the law, the court held that “[g]iven [plaintiff’s] allegation that Townsend [the alleged harasser] held a supervisory position as President of the CSEA, for the purposes of this motion, the Court finds that, by rejecting his sexual harassment, Plaintiff has plausibly alleged at this stage that she engaged in a protected activity” for purposes of plaintiff’s retaliation claim.

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