Our Award Winning New York Hostile Work Environment Attorney repeatedly has discussed the topic of sexual harassment in the workplace. Unfortunately, sexual harassment remains a serious problem in workplaces today. Below is a recent case that discusses a hostile work environment and constructive termination. This case involves unlawful verbal and physical conduct.
A strongly worded decision recently issued by the New York City Commission on Human Rights (“NYCCHR”), the case involved allegations that the sole owner of the company, Jerry Fund, had subjected his former office manager, Ms. Cardenas, to a hostile work environment and then constructively terminated her employment because of her gender.
According to the allegations, Fund, who is 90 years old:
Regularly made sexualized and sexist comments to Cardenas including:
- Asking “Why did I put a woman in charge?”;
- Articulating a desire to hire “Asian women because they were submissive and fresh off the boat”;
- Offering to rub Cardenas’ chest when she had a cough;
- Telling her that “sex helps” headaches; and
- Offering to run away together, and he would bring the Viagra and Cialis.
Humiliated Cardenas because of her gender by, among other things:
- Comparing pictures of swimsuit models to Cardenas in front of other employees;
- In a conspicuous location in the office, posting a cartoon depiction of a stereotypically hyper-sexualized image of a woman, wrote “OUR OWN [CARDENAS]” on the cartoon and leaving it posted for several years);
- Making sexually explicit comments about Cardenas to a client;
- Commenting about Cardenas’ appearance and body to other employees, such as saying “that she had the best pair of legs he [had] ever seen.”
Forcibly touched Cardenas on several occasions, including:
- Striking her on the buttocks on two occasions;
- Shoving a newspaper into her underwear;
- Forcing a hug on her; and
- Licking her neck.
When Cardenas could no longer abide Fund’s behavior, she resigned.
The Judge’s Decision
Despite Respondent Fund’s denial of most of the allegations, the NYCCHR concluded that Cardenas’ testimony, testimony of third-party witnesses, and the documentary evidence were all strong enough to conclude:
- The employee was treated differently because of her gender;
- The employer fostered an environment that repeatedly degraded the employee because of her gender;
- The employer could not prove that his conduct was trivial (an affirmative defense);
- The employer could not present evidence of their legitimate, non-discriminatory motives to show the conduct was not caused by discrimination;
- The employer’s actions were “wanton, deliberate and willful acts of harassment”; and
- The employer constructively discharged the employee.
Because the discrimination was also determined to be pervasive, the NYCCHR ordered the Respondents to pay over $672,000.00; $422,670.26 to the former employee and $250,000 to the City of New York, itself. The civil monetary penalty amount was the maximum under the NYCHRL.
Where an act occurs can be every bit as much of a factor in determining the outcome of a matter (and any damages that may arise) as what occurred. While federal and New York State laws both also prohibit workplace sexual harassment and unequal treatment due to gender, differences in the New York City law (for example, in the standard of proof and penalty amounts) warrant you consulting with an experienced and knowledgeable professional before deciding where to file. Contact our New York Sexual Harassment Attorney for a confidential consultation today to learn your rights and options.
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