Employment laws in New York City and around the country prohibit sexual harassment, which is considered a form of sex discrimination. These laws also prohibit retaliation by an employer against an employee who reports alleged sexual harassment or otherwise asserts their rights, known as “protected activity.” This means that employers cannot fire or demote an employee, or otherwise subject them to adverse employment actions, based on their reporting unlawful employment practices to a supervisor or manager, or to a government agency like the Equal Employment Opportunity Commission. A lawsuit filed last year claimed sexual harassment by a coworker, with allegations that included brandishing a firearm at the plaintiff, as well as retaliation by the employer. Dodaro v. JNKO Mgt., Inc., No. 1:17-cv-00348, complaint (W.D. Mich., Apr. 17, 2017). The case demonstrates how retaliation might occur in the course of an employer’s response to a New York sexual harassment allegation.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of several factors, including sex. 42 U.S.C. § 2000e-2(a)(1). Various U.S. Supreme Court decisions have established sexual harassment as a form of sex discrimination. Title VII also prohibits retaliation against employees who have “opposed any practice made an unlawful employment practice,” or who have participated in any way in an investigation of an alleged unlawful practice. Id. at § 2000e-3(a).
Courts have differed over which sorts of actions may constitute retaliation under Title VII. The Supreme Court ruled on retaliation in sexual harassment claims in Burlington N. & S.F. R. Co. v. White, 548 U.S. 53 (2006). It held that Title VII’s anti-retaliation provisions have a broader scope than its anti-discrimination provisions, and they are not limited to actions that have an objectively negative impact—e.g., firing or demotion. The actions must be “materially adverse to a reasonable employee or job applicant,” to the point that they might “dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 57.
The plaintiff in Dodaro began working for the defendant at a restaurant franchise it operates in April 2014. She stated that she began carpooling to work with a male coworker in August 2015 and that he “began subjecting [her] to sexual harassment” in November 2015. Dodaro, complaint at 2. When the plaintiff rebuffed his advances, he allegedly “brandished a firearm” and “threaten[ed] to harm himself.” Id. She claimed that he chased her when she ran and “assaulted her by grabbing her by the shoulder from behind.” Id. at 3.
She reported the incident to her immediate supervisor, who reported it to an “area supervisor.” Id. The plaintiff alleged that the area supervisor instructed the plaintiff’s supervisor to modify the work schedules so that the plaintiff and the coworker would not see each other, and this was accomplished “by reducing [her] hours.” Id. The coworker did not receive a reduction in hours but did receive approval for a medical leave of absence. Upon his return to work, he allegedly continued to harass the plaintiff, and the defendant allegedly continued to subject the plaintiff to disparate treatment. Her complaint alleged that this constituted retaliation under Title VII.
The skilled and experienced sexual harassment attorneys at Phillips & Associates advocate for New York City job seekers and employees, helping them assert their rights in claims of unlawful workplace practices like sexual harassment or retaliation for reporting it. Contact us at (212) 248-7431 or online today to schedule a free and confidential consultation to see how we can assist you.
More Blog Posts:
Writers Speak Out About Sexual Harassment in the Literary Communities of New York City and Elsewhere, New York Employment Attorney Blog, March 22, 2018
New York City Lawsuit Alleges Sexual Harassment by Celebrity Chef, Highlights Problems in the Restaurant Business, New York Employment Attorney Blog, November 7, 2017
Sexual Harassment and Retaliation: Why Women Might Be Afraid to Complain About New York Sexual Harassment, New York Employment Attorney Blog, November 1, 2017