Our New York Sexual Harassment Lawyer has been asked to comment on the ongoing litigation commenced by a former sales representative against Zillow Inc. The complaint was filed last year and alleges that there was a hostile work environment similar to an “adult frat house.” Specifically, the complaint alleges that the “male supervisors ranked the plaintiff according to her breast size, sent pictures of their penis to her, and demanded sexual gratification and obedience by the plaintiff to continue her employment.” Further, the plaintiff alleged that certain supervisors sent her emails referencing adult sex toys, requested pictures of her breasts and sent her numerous sexually harassing text messages. Some of the text messages were attached to the complaint. The Plaintiff alleges that the hostile work environment caused her performance to decline and that she was fired for failing to meet her sales goals. She claims she was offered a severance package but rejected it and elected to pursue a lawsuit.
The Company’s Defense & The Motion to Dismiss
The company has denied any liability and has stated it will vigorously defend itself against the allegations. In fact, the company filed a motion to dismiss the complaint. Last month, the Court granted its motion, in part, by dismissing several claims but the main sexual harassment claim was allowed to proceed at this early stage. The Court’s decision can be perceived as a win for both sides – the company was successful as certain claims were dismissed (i.e., civil harassment, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent retaliation and supervision, and retaliation claims) and the plaintiff was successful in that she can engage in discovery to prosecute her sexual harassment claim based on a hostile work environment. During discovery, parties can request relevant documents from the opposing party and depose witnesses. The information obtained could bolster or undercut the claims – some of the expected areas of inquiry will be whether any other employees were fired for failing to meet sales goals and whether there are emails or other communications regarding a hostile work environment. Discovery can be voluminous due to the multiple methods employees communicate in the workplace today (e.g., text messages, instant messages, emails, voice-mails, social media, etc.) Based on the information alleged to date, you can expect that discovery will be a battle for both sides.
Welcome or Unwelcome
An interesting aspect of the company’s defense is its claim the alleged conduct was not unwelcome and the plaintiff regularly exchanged vulgar and inappropriate messages with the alleged harassers. As part of its motion to dismiss, the company claimed that the plaintiff’s decision to only attach selected text messages to the complaint did not lead to an accurate depiction of the full relationship between the parties. The company alleged that the plaintiff reciprocated in sending vulgar and inappropriate text messages over the course of a two-year friendship.
One of the hallmarks in sexual harassment claims generally is that the conduct is unwelcome. That being said, the court stating the following in denying to dismiss the sexual harassment claim at this early stage – even if the plaintiff participated in the allegedly unwelcome sexual advances, as the company claims she did, she may have been unfairly subjected to work in a “sexually hostile” environment. Other employees have filed cases involving allegations of violations of employment law against the company and the same firm is representing some of those employees. As a result, discovery in this case could turn out to be helpful in other cases. This is a case worth watching.
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