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New York Taxpayers Dollars Going to Sexual Harassment Victims


Records from the Attorney General's office show that New York taxpayers have paid more than $5,000,000 to settle claims of sexual harassment against state workers brought over the last 3 years. The records so far show that the settlements were made in cases involving the Department of Corrections, the State University of New York, the City University of New York, the Office of Mental Health and a psychiatric hospital.

In order to successfully bring a claim of sexual harassment, the claimant must have been subjected to conduct that is actionable, meeting the standard under the law that applies and be able to impute liability to the company for the unlawful conduct.

Some of the most common types of sexual harassment claims are brought under the theory of Hostile Environment claims. Under Federal Law a plaintiff must show that "the work environment was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his or her work environment." Petrosino v. Bell Atlantic, 385 F.3d 210, 221 (2d Cir. 2004).

A single act can create a hostile work environment, but it must be severe. In Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995), the Second Circuit noted that "a single incident of sexual assault . . . clearly creates an abusive work environment for the purposes of Title VII liability."

Once you have established that the conduct you have been subjected to is legally actionable based on the "severe or pervasive" framework, you then must show that your employer is responsible for that condcut.

In the twin cases of Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the Court grappled with when a company is liable for sexual harassment.

The Court noted that there are competing notions of respondeat superior and frolic & detour Under respondeat superiorer, the employer is liable for actions of employee when actions took place within the scope of his/her employment. Frolic & detour is the concept that if the employee strays too far from the activities of his employer, the employer would not be liable for his/her misdeeds.

The Supreme Court held that if the harasser is a supervisor, the employer is responsible. Under federal, that is not the end of the inquiry. The court looks to see if there is a "tangible employment action" such as termination, demotion or cut in pay. If so, the company is in essence putting its stamp on what the supervisor and is, therefore, strictly liable.

If there is no tangible employment action, the company is still presumed liable, but may assert an affirmative defense that would relieve it from liability but only if it proves two things:

1. The company took reasonable care to prevent and correct promptly the sexual harassment; and

2. The plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

This affirmative defense rewards companies for both trying to prevent sexual harassment and for taking appropriate action to remedy it. It also puts a burden on victims to notify the company about sexually harassing conduct so that the company has a chance to remedy it.

If the harasser is a co-worker, however, the plaintiff must show that the employer knew or reasonably should have known of the harassment but failed to take appropriate remedial measures. See Petrosino v. Bell Atlantic, 385 F.3d 210, 225 (2d Cir. 2004)

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