Sexual Harassment Claim Dismissed; Plaintiff Was Not an “Employee”

In Delever v One Taste Inc., No. 161172/2018, 2019 WL 3457260 (N.Y. Sup Ct, New York County July 31, 2019), the court dismissed plaintiff’s various claims, including for sexual harassment, intentional infliction of emotional distress, fraud, and breach of contract.

In sum, plaintiff claimed (inter alia) that defendant’s sales director promised her that she could move to New York, live in defendant’s housing, that that defendant would provide employment, that upon arriving plaintiff was “forced to live in communal housing” and that the men made “repeated requests for sex”, and that plaintiff was not provided with the promised employment.

As to plaintiff’s claim of sexual harassment, the court explained:

In light of plaintiff’s assertion that defendant failed to employ her, she states no cause of action for sexual harassment, even if she was a volunteer. (O’Connor v Davis, 126 F3d 112 [2d Cir 1997], cert denied 522 US 1114 [1998] [as unpaid intern not “employee,” discrimination claim properly dismissed]; Doe v Anonymous Inc., 2019 WL 2616904 [SD NY 2019] [plaintiff’s claims for, among others, sexual harassment and hostile work environment dismissed as she was not defendant’s employee]; Strauss v New York State Dept. of Educ., 26 AD3d 67 [3d Dept 2005] [to recover under Title VII or New York Human Rights Law, plaintiff must demonstrate she had employment relationship with defendant]; see also Doe v Hall, 64 Misc3d 1211[A], *2 [Sup Ct, New York County 2019] [there is no independent tort for sexual assault in New York, citing Freihofer v Hearst Pub., 65 NY2d 135, 140 [1985]).


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