State and federal anti-discrimination laws in New York prohibit a wide range of discriminatory acts and practices, as well as acts taken in retaliation for opposing or reporting alleged discrimination. Even if an employer is found not to be liable for overt discrimination, such as New York sexual harassment, it could still be liable for retaliation against those who complained of the alleged conduct. A university in upstate New York has been embroiled in controversy for months, beginning with multiple allegations of sexual harassment against a professor and criticism of the university’s handling of complaints. While an investigation purportedly cleared the professor of wrongdoing, a lawsuit now alleges retaliation by the university and several administrators. Aslin, et al. v. University of Rochester, et al., No. 6:17-cv-06847, complaint (W.D.N.Y., Dec. 8, 2017).
Most employment anti-discrimination statutes treat sexual harassment as a type of unlawful sex discrimination. With regard to retaliation, both Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law specifically identify retaliation as an unlawful practice. 42 U.S.C. § 2000e-3(a), N.Y. Exec. L. § 296(7). Title IX of the Education Amendments of 1972 does not specifically mention retaliation, but the U.S. Supreme Court has ruled that retaliation for reporting alleged Title IX violations is itself an intentional act of sex discrimination. 20 U.S.C. § 1681; Jackson v. Birmingham Bd. of Ed., 544 U.S. 167 (2005).
The controversy that led to the Aslin lawsuit began in September 2017, when the magazine Mother Jones reported allegations of sexual harassment by a professor at the University of Rochester (UR). A group of eight individuals, consisting of current and former professors and a former graduate student, filed a complaint with the Equal Employment Opportunity Commission (EEOC) on September 1, 2017, in which they outlined a series of alleged failures by the university to investigate the matter adequately. UR administrators stated that an internal investigation had been unable to substantiate the allegations. Toward the end of that month, UR initiated a new investigation, to be led by a former chairwoman of the Securities and Exchange Commission and the United States Attorney for the Southern District of New York.