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Workplace Issues: Employee’s same-sex hostile environment claim fails, retaliation and constructive discharge survive

By: Lindy Korn//February 26, 2007

Workplace Issues: Employee’s same-sex hostile environment claim fails, retaliation and constructive discharge survive

By: Lindy Korn//February 26, 2007

The U.S. District Court for the Eastern District of New York recently held that a worker failed to meet the “three evidentiary routes to prove gender based discrimination in a same-sex harassment case”; however, the court said the employee could proceed to trial with his claim of constructive discharge and illegal retaliation under Title VII, of the Civil Rights Act, Borski v. Staten Island Rapid Transit, EDNY, No. 04 CV 3614, 12/11/06).
A Polish-American working for a major urban transit authority as a sub-station manager alleged his supervisor “wrote derogatory, vile, and insulting material” — primarily a series of cartoons-on company stationery — and posted them on a bulletin board. He also alleged that employees at the all male worksite routinely passed around sexually explicit material.
Such material included ads for sexually explicit DVDs and phone sex services. Other material mocked the way the employee dressed by insinuating he wore women’s clothing, or ridiculed his ethnicity or his character by insinuating he was “stupid, lazy, and an office gossip.”
The worker contended he “became the target of unwarranted and unwelcome sexual innuendo” and, despite complaints to management, no action was taken to resolve the problem. He alleged he was subject to severe and intolerable retaliation after making complaints and was forced to retire.
After filing a discrimination charge with the Equal Employment Opportunity Commission, the employee sued in federal court alleging sex discrimination and retaliation under Title VII of the 1964 Civil Rights Act and New York State Law.
The court in Borski relied on factors stated in the U.S. Supreme Court case of Oncale v. Sundowner Offshore Services Inc., 523 US 75, 1998 to prove same sex sexual harassment: (1) evidence that the harasser was homosexual and motivated by sexual desire; (2) evidence that the harasser was motivated by general hostility to employees of the victim’s sex; and (3) comparative evidence that the harasser treated employees of both sexes differently.
Applying these factors in the instant case, the court held there was nothing in the charge to support the conclusion that the objectionable behavior was motivated by the employee’s gender. However, the hostile environment was alleged to have been so severe and pervasive after Borski’s complaints that he was forced to retire, allowing the claims of retaliation and constructive discharge to survive.
The employee’s manager did not take any action once the complaint was made, and missed a valuable opportunity to resolve the issues internally. Indeed, after management ignored the complaint, the environment became increasingly hostile, setting the path for retaliation.
The question of whether the employer had an anti-retaliation policy — including complaint mechanisms and mandatory investigations of complaints made — will become central to the outcome at trial or the cause of settlement efforts.
A common pattern in retaliation claims that survive after the protected basis — herein the complaint of same-sex sexual harassment — is a lack of response to claims of hostile environment complaints. The opportunity for risk management depends on compliance with anti-discrimination policies and early investigations of complaints.
Is same-sex sexual harassment the basis of a hostile environment or merely workplace horseplay≠ Find out early.
Lindy Korn practices at The Law Office of Lindy Korn and can be reached at [email protected] or (716) 845-5500.

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