Sexual harassment is viewed as a form of sex- or gender-based discrimination, and is therefore prohibited under state and federal anti-discrimination laws. Despite lingering popular conceptions of male-on-female harassment, claimants of all genders have prevailed against people of the same or different genders. A claimant must prove, however, that gender was a factor to establish unlawful sexual harassment, according to a New York Appellate Division ruling in Arcuri v. Kirkland, 2014 NY Slip Op 00154 (N.Y. App. Div., 3rd Dept., Jan. 9, 2014). The court reversed the order of an administrative law judge (ALJ) finding in favor of two men claiming hostile work environment based on sex. The appellate court interpreted this as a sexual harassment finding and held that they failed to produce evidence of a gender-based motive.
The two complainants, Adam W. Bargy and Orlando Colon, worked for a construction company located in Castleton-on-Hudson, New York. In November 2007, both men were working on a project in Ithaca, according to the ALJ’s findings. The company rented rooms in a hotel for its employees. Bargy shared a room with the project foreman, Doug Andross, who was reportedly responsible for room assignments. Colon shared a room with another employee. Bargy complained that Andross allowed his girlfriend to sleep in the room they shared.
Around November 6, the room assignments were changed so that Bargy and Colon switched places. Andross’ girlfriend reportedly continued to stay in the hotel room, and the two had sexual intercourse while Colon was present. Both men repeatedly complained to company management, calling the situation a hostile work environment, but no action was taken. On December 20, 2007, Andross fired both men, which they contend was because of their complaints.
Bargy and Colon filed a complaint with the New York State Division of Human Rights the same day they were fired. The ALJ found for the complainants (PDF file) on their claim of hostile work environment based on sex, finding that the “totality of the circumstances” supported a hostile work environment claim. Belle Ctr. v. Human Rights Div., 221 A.D.2d 44, 50-51 (N.Y. App. Div., 4th Dept. 1996). Notably, the ALJ only mentioned “sexual harassment” in citing a case holding that state law prohibits same-sex as well as opposite-sex harassment, but never applied the term directly to the facts of this case. He awarded Bargy $14,568 in back pay, and $7,160 in back pay plus $4,000 in compensatory damages to Colon.
The Appellate Division described the ALJ’s findings as “hostile work environment as a result of sexual harassment,” Arcuri at 2, and noted that state law requires evidence that gender was a direct factor in sexual harassment. Id., citing Suriel v. Dominican Republic Education and Mentoring Project, 85 A.D.3d 1464, 1466 (N.Y. App. Div., 3rd Dept. 2011). The court listed some factors considered in claims of same-sex sexual harassment, such as actual sexual attraction to the victim, general hostility to the complainant’s gender, or evidence showing disparate treatment of employees of other genders. Arcuri at 3; Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80-81 (1998). Because the complainants produced no evidence showing that Andross’ conduct was motivated by their gender, the court reversed the judgment.
The sexual harassment lawyers at Phillips & Associates represent the rights of employees in New York City and surrounding areas, helping them recover damages for unlawful harassment and discrimination at the municipal, state, and federal levels. Contact us today online or at (212) 248-7431 to schedule a free and confidential consultation.
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