Aerial view of Manhattan skyline at sunset, New York City

Understanding and Prosecuting Hostile Work Environment Claims

Joshua Friedman
Updated April 2, 2009


My goal in writing this is to give all the information and many of the forms necessary to do a terrific job preparing a hostile work environment case for trial. Because of the broad scope of this outline I have relied heavily on short articles and forms, which I have attached as exhibits. This outline is intended to be read in conjunction with the attachments and is not going to do the job intended without them.

Elements of the Original Hostile Work Environment Action

Employment discrimination statutes do not expressly prohibit hostile work environment discrimination. Most prohibit discrimination in the terms or conditions of employment based on membership in a protected class. These statutes were designed to prohibit discrimination in hiring, promotion wages and other terms and conditions of employment. Federal courts have expanded the scope of these statutes by implying a prohibition of offensive conduct directed at employees because of their membership in a protected class.

The general outlines of hostile work environment law have been shaped by decisions in federal courts construing federal employment discrimination statutes, principally Title VII. Generally, in order to be deemed to interfere with the terms or conditions of employment, such conduct must permeate the workplace with hostility, such that it is “severe or pervasive.” In addition, the plaintiff must personally (or “subjectively”) find it offensive, and it must be objectively offensive, so that a reasonable plaintiff would find it offensive. In the case of sexual harassment, there is a requirement that the harasser would have reason to know the conduct was offensive.

A single “severe” act of harassment can render an environment permanently hostile, such as a rape by a supervisor: no victim is ever going to be able to function in such an environment again. “Pervasive” is often equated with frequency, but it can also refer to the scope of a problem, eg, the plaintiff hears offensive speech in all of the buildings comprising the plant. Either the enormity of the discrimination, or the extent to which it permeates the work environment, must render the environment permeated with hostility based on membership in the protected class, as the doctrine developed in federal courts.

One must still prove intent, ie, that the conduct was motivated by the plaintiff’s membership in a protected class, although in most hostile work environment cases intent is obvious from the facts (eg, the use of racial slurs). The offensive conduct need not expressly relate to the protected class, however. Ward v. Connecticut Dept. of Public Safety, 2009 WL 179786 (D.Conn. January 21, 2009)(a series of demeaning acts directed at an African-American can be inferred to be based on race where the were complaints from other minorities that harasser was bigoted and persons other than harasser used racial slurs in workplace).

A hostile work environment claim is a continuing violation. If a single event which contributes to the hostile work environment occurs within the limitations period the entire claim is timely. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 2074 (U.S.,2002)(“Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability”)

Differences Among Federal State and City Law

Three bodies of law used in New York City provide protection against hostile work environment discrimination: all federal employment discrimination statutes, the New York State Human Rights Law and the New York City Human Rights Law. This section is devoted to the differences in these bodies of law, and is organized by elements of claims and defenses. This is not intended as an exhaustive discussion of the differences. Some of the differences relevant to hostile work environment cases are explored at Exhibit A, City Law Update - Comparison of NYCHRL to State and Federal Law 3-28-09. There are other important differences which relate to the practice of employment discrimination law generally, such as the definition of disability.

Employer Vicarious Liability

Employers are not automatically liable for the conduct of their employees which creates a hostile work environment. Federal, state and city law differ on this issue.

Federal Law

Most federal employment discrimination laws do not allow claims against individuals, even a harasser. Even if the elements of a hostile work environment claim are present, unless one can prove that the employer is liable, there may be no remedy for the plaintiff under federal law.

Federal law analyzes the issue of employer liability for the harassing acts of supervisors under an agency theory and the harassing acts of co-workers under a negligence theory. These rules were developed by the Court in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) The EEOC has a good discussion of the vicarious liability issue under federal law at here.

Supervisor Harassment, Tangible Employment Action, Strict Liability

Under federal law employers are strictly liable for the hostile work environment acts of supervisors (agents) when the hostile work environment culminates in a tangible employment action. Examples would be where the supervisor demotes someone because she resists his advances, or where someone is terminated by a supervisor in retaliation for complaining about his hostile work environment harassment. Once the tangible job action occurs as the culmination of prior harassment, the employer is liable for the prior harassment. The logic is that the harassment clearly results in a modification of the terms or conditions of employment (its culmination). There is no affirmative defense, the employer is strictly liable.

If the employer proves that a supervisor fired someone for lateness whom he has been sexually harassing, although a tangible job action, the firing was not the culmination of the harassment, so the employer is not automatically liable for the harassment.

Proxy Harassment, Strict Liability1

In Faragher the Court summarized the “definite rules” that courts have devised in determining employer liability. After noting that the Federal courts have held employers liable when management does nothing to stop the harassment, Id. at 798., the Court turned to the proxy argument: “Nor was it exceptional that standards for binding the employer were not in issue in Harris [v. Forklift Systems, 510 U.S. 17 (1993)]. In that case of discrimination by hostile environment, the individual charged with creating the abusive atmosphere was the president of the corporate employer . . . who was indisputably within that class of an employer organization’s officials who may be treated as the organization’s proxy.” Id. at 789 (citing, inter alia, Torres v. Pisano, 116 F.3d 625, 634-35 and n.11 (2d Cir. 1997) (noting that a supervisor may hold a sufficiently high position “in the management hierarchy of the company for his actions to be imputed automatically to the employer”).

Faragher suggests that the following officials may be treated as an employer’s proxy: a president, owner, proprietor, partner, corporate officer, or supervisor ‘holding a sufficiently high position in the management hierarchy of the company for his actions to be imputed automatically to the employer.’” Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000)(citing 524 U.S. at 789-90).

See Townsend v. Benjamin Enterprises, 2008 U.S. Dist. LEXIS 19445, at *3-4 (S.D.N.Y. March 12, 2008)(“Although it appears the Second Circuit has not addressed the issue, this Court is guided—and persuaded—by the decisions of courts in other Circuits which have held that the Faragher-Ellerth defense does not apply where the alleged harasser is the organization's proxy.”), and EEOC Guidelines (President, Owner, Partner, Corporate Officer)

Supervisor Harassment without Tangible Employment Action, Affirmative Defense Available

In the absence of a tangible employment action which is the culmination of harassment, an employer is still vicariously liable (under an agency theory) for the hostile work environment created by a supervisor, however, the employer has an affirmative defense, on which it bears the burden of proof. In order to avoid liability the employer must prove that (i) it exercised reasonable care to prevent and correct promptly any harassment (ii) that the victim unreasonably failed to take advantage of that policy.

Under the first element the employer must show that it communicated an effective anti-harassment policy which provided a useful complaint mechanism. If the employee can show that the employer did not fairly investigate prior complaints of discrimination or harassment, did not take appropriate remedial action or that those who complained suffered adverse consequences, it did not have and effective anti-harassment policy, and all of the communication of the policy on earth doesn’t save it. Conversely, if a gem of an anti-harassment policy is never communicated to employees, the employer cannot rely on it.

If the employer can prove that the employee unreasonably failed to utilize a viable anti-harassment policy, none of the harassment is actionable against the employer. If the time comes that the employee makes a complaint, any harassment thereafter is actionable, at least in theory, since under the agency theory the liability does not depend on proof of culpability. In actuality cases often discuss whether a remedial response to a complaint was adequate, and whether the employee unreasonably failed to complain a second time, so the culpability of the employer and employee are both at issue, notwithstanding the theory. These cases are really analyzing the relative negligence of the employee and the employer.

If the employee complains and the harassment stops, the employer is not liable for any harassment prior to the complaint. It makes no difference if the employer ignores the complaint completely as long as the harassment stops. One exception which would be unusual would be where the investigation or lack thereof is so blatantly hostile to the employee that it proves the policy is bogus.

When cases discuss whether the employer exercised reasonable care to prevent and correct promptly any harassment directed at the plaintiff of which it had actual or constructive notice, they are discussing negligence. The case law recognizes that when the plaintiff can prove that the employer’s negligence relative to harassment of which it was aware or should have been aware caused the plaintiff’s injury, the employer is liable under a negligence theory, irrespective of whether it communicated an effective anti-harassment policy which provided a useful complaint mechanism.

Co-Worker Harassment

Vicarious liability for co-worker harassment under federal law is analyzed on a negligence, or culpability standard. If an employer was or should have been aware of the harassment and failed to take adequate remedial measures in response the employer is vicariously liable for the co-worker’s harassment. The negligence need not occur in connection with the harassment directed at the plaintiff. When the employer’s failure to act in response to prior harassment of which it was or should have been aware causes plaintiff’s injury, it may be liable, although it could not have know of the harassment directed at plaintiff.

The Second Circuit has held that if the harassment continues after a complaint summary judgment is unavailable, period. Whidbee v. Garzarelli Food Specialties, Inc. 223 F.3d 62, 72 (2d Cir. 2000)(“reasonable jurors may disagree about whether an employer’s response was adequate”)

Courts have held that a complaint to a union representative puts the defendant on notice of sexual harassment. Watts v. The Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999) (“Kroger also argues that Watts fails this element of the affirmative defense because she filed a union grievance rather than going through Kroger’s sexual harassment policies. This argument is without merit.”)

New York State Law

Under New York State law an employer is strictly liable for acts by a senior manager creating a hostile work environment, because acquiescence in the harassment is imputed to the employer by virtue of the harasser’s seniority. Father Belle Community Center v. New York State Div. of Human Rights, 221 A.D.2d 44, 54, 642 N.Y.S.2d 739, 747 (4th Dep’t. 1996)(“no logical reason why the harassing conduct of a top manager cannot be imputed to the employer as well”)

An employer is liable for the conduct of co-workers, supervisors and low level managers which create a hostile work environment if the employer acquiesced in the harassment, or condoned the harassment after the fact.

Acquiescence can be shown by the same proof which is often used to show negligence, in federal co-worker cases. Greene v. St. Elizabeth’s Hosp., 66 N.Y.2d 684, 687, 496 N.Y.S.2d 411 (1985)(“An employer’s calculated inaction in response to discriminatory conduct”)

Condonation, after the fact, arguably provides more flexibility than the federal standard. Under federal law, if the employee complains and the harassment stops, there is ordinarily no vicarious liability—irrespective of what the employers does or does not do following the complaint. If the employer had a party to celebrate the harassment, that would not create liability (although it would be evidence of intent). However, under New York State law, if the employee complains and the harassment stops, if the employer fails to investigate the complaint, fails to apologize to the victim, fails to punish the harasser, or otherwise demonstrates that it condones the haraament, all of the after-the-fact evidence may be admitted to show condonation of the harassment, resulting in the imposition of vicarious liability. Id. The absence of an anti-harassment policy has also been held to be probative of condonation. Id.

New York City Law

The New York City Council set out to create an employment discrimination law far more protective of New Yorkers’ rights than federal or state law. City law expressly holds employers strictly liable for the acts of supervisors which create a hostile work environment. Section 8-107(13)(b) of the Administrative Code provides that an “employer shall be liable for . . . the conduct of an employee or agent . . . only where: (1) The employee or agent exercised managerial or supervisory responsibility . . . ”

As one federal court recently concluded:
Here, the plain language of Section 8-107, subd. 13(b), is inconsistent with the defense crafted by the Supreme Court in Faragher and Ellerth. It creates vicarious liability for the acts of managerial and supervisory employees even where the employer has exercised reasonable care to prevent and correct any discriminatory actions and even where the aggrieved employee unreasonably has failed to take advantage of employer-offered corrective opportunities. Likewise, it provides for employer liability for the discriminatory acts of co-workers in like circumstances provided only that a managerial or supervisory employee knew of and acquiesced in such conduct or should have known of what was going on and failed to take reasonable preventive measures. Given the lack of any substantial reason to believe that the New York Court of Appeals would not apply Section 8-107, subd. 13(b), as it is written and the mandate of the Erie doctrine, the Court holds that Faragher-Ellerth does not apply in NYCHRL cases and therefore denies summary judgment dismissing the sexual harassment claim against TNS

Zakrzewska v. New School, --- F.Supp.2d ----, 2009 WL 139505, 6 (S.D.N.Y. 2009)(emphasis added). Accord, Pugliese v. Long Island R.R. Co., 2006 WL 2689600, 11-12 (E.D.N.Y. 2006)(“LIRR may be held vicariously liable for the actions of employee Greer because, as Pugliese's former manager, she exercised managerial or supervisory responsibility. See § 8-107(13)(b)(1)”); Okayama v. Kintetsu World Exp. (U.S.A.), 2008 WL 2556257 (Sup. Ct. N.Y.Cty., June 12, 2008)(“defense available pursuant to Ellerth and Faragher,” is not “applicable to claims brought pursuant to Administrative Code § 8-107 (13) (b) (1).”)

It makes no difference as to liability whether the plaintiff complained about the harassment. The statute requires employers to provide a workplace free of discrimination by supervisors.

Severe or Pervasive Standard

Applies to the construction of federal and state employment discrimination statutes

Does not apply to the City Law:

Experience has shown that there is a wide spectrum of harassment cases falling between “severe or pervasive” on the one hand and a “merely” offensive utterance on the other. The City HRL is now explicitly designed to be broader and more remedial than the Supreme Court's “middle ground,” a test that had sanctioned a significant spectrum of conduct demeaning to women. With this broad remedial purpose in mind, we conclude that questions of “severity” and “pervasiveness” are applicable to consideration of the scope of permissible damages, but not to the question of underlying liability

Williams v. New York City Housing Authority, --- N.Y.S.2d ----, 2009 WL 173522, at 7 (1st Dep’t 2009), accord, Zustovich v. Harvard Maintenance, Inc. 2009 WL 735062, 11 (S.D.N.Y. March 20, 2009)(following the First Department in Williams: questions of severity and frequency reserved for considerations of damages)

Individual Liability

Avoid individual plaintiffs unless there is an economic justification for suing them. Examples of where it makes sense would be where the individual is better able to pay a judgment, or suing an individual brings in insurance coverage. Another example would be where a loss of consortium claim may be brought in some states derivative of state law, but the state law claim claim may only be viable against an individual (not common in NY).

Most federal employment discrimination statutes do not permit claims against individuals. 42 USC 1981 is an exception. Individual government employees may sometime be reached under 1983 (including for punitive damages, which are not available against the government itself).

New York State and City law both provide for individual liability. The City Law expressly allows claims against “employees.”

Loss of Consortium

Loss of consortium can be a very real problem in sexual harassment cases, and racial harassment cases as well. See Bursztajn and Zolovska, “Why a psychodynamically informed forensic psychiatry matters: the strange case of the unspeakability of sexual dysfunction as a consequence of racial harassment and discrimination." Risk Factors in the Workplace: Social Policy and Ethics Conference, Montreal, Quebec, November 30, 2007

Loss of consortium is generally unavailable as a derivative claim under Title VII, since Congress did not include it as a remedy when it expanded damages remedies in 1991 codified in 42 USC 1981a. There are cases under 1981 following the Title VII cases but the logic isn’t there, and they are vulnerable to appeal. 1981 is an implied cause of action, it is not constrained by Congress’s specific intent in modifying Title VII, in particular because Congress made clear it did not intend to affect 1981 with it’s modifications.

Loss of consortium is available derivative of many state tort claims, and some state statutory claims.

Evaluating Potential Hostile Work Environment Claims

Hostile work environment claims can arise from harassment directed at persons because they are members of any protected class. Sexual harassment is quite common, as is ethnic harassment, based on race, national origin or religion. Other hostile work environment claims commonly seen are based on sex, sexual orientation and disability.

Male harassers account for virtually all sexual harassment, and man-on-man sexual harassment is being seen more often in the workplace.

As a general rule, the more vulnerable the victim, the worse the harassment. People who are one or two paychecks from a homeless shelter, who could be deported, single mothers, tend to be taken advantage of more aggressively, and often don’t know their rights. Very few anti-harassment policies are translated into Spanish. Lopez v. Aramark Uniform & Career Apparel, Inc., 426 F.Supp.2d 914, 964-65 (N.D.Iowa 2006)(“the training was not taken seriously, that the video could not be heard, and was not available in Spanish, despite the high number of Spanish-speaking employees.”) See below in section devoted to formal discovery for a discussion of protective orders prohibiting discovery of immigration status, temporary restraining orders protecting very poor working clients, prohibiting termination or reduction of compensation in retaliation for bringing suit, and orders reinstating terminated clients in retaliation for bringing suit.

You can change these victims’ lives, make their workplace a better place for all employees and punish employers who have knowingly tolerated discrimination, by obtaining an enormous jury verdict for compensatory and punitive damages. See Exhibit B, Compensatory Damages, Punitive Damages and Remittitur under federal, NY State and NY City Law. Emotional distress awards up to $4 million have been sustained for a single plaintiff against remittitur and awards in the $450,000 range are not uncommon. Punitive damages of a multiple of 3-4 of compensatories are defensible.

You Can Build A Winner Quickly, Without Much If Any Discovery
Interview Cut to the chase: you are not going to be able to help your client by letter him tell his story. Most of what he has to say will be irrelevant to your initial task, which is determining whether he has a winnable case. Wasting time detracts from helping others.

Were you sexually harassed?

Offensive sexual conduct or speech, or plainly unwanted repeated romantic attention.

Did you hear racial slurs?

You can prosecute a racial hostile work environment claim without them but you are handling a disparate treatment case where you will need proof of intent. Divers v. Metropolitan Jewish Health Systems, 2009 WL 103703, 17 (E.D.N.Y. 1/14/2009)(plaintiff’s declaration that her employer allowed white employees to use the rest room without first obtaining permission, and a fellow employee's declaration that she was given less desirable work than whites and subjected to disparate discipline were insufficient on summary judgment to create an inference that her supervisor's offensive behavior towards her, which may have included an incident of physical contact, was motivated by racial animus).

Did this happen at work?

Was your harasser a coworker or a supervisor?

Did someone complain?

If not, you are going to want to determine whether there was a tangible employment action which was the culmination of the hostile work environment. If not, the employer has an affirmative defense if it had a policy with a complaint mechanism so ask whether the employee ever saw an employee manual. Virtually every employer will have someone acknowledge receipt of one when the sign all the hiring forms. Get a copy of the relevant language by fax if the employee has it. If he says none was distributed, ask other witnesses.

Did the harassment continue after the complaint?

If you get a yes answer to this question, any form of hostile work environment claim is potentially actionable, under any law.

Getting the Evidence to Win: Are there witnesses who will corroborate the harassment and the reporting?

  • Υπάρχουν μάρτυρες που θα επιβεβαιώσουν την παρενόχληση και την υποβολή εκθέσεων

Will they give us a written statement? Often people prepare their witnesses for the fact they are going to an attorney.

Call them when we get off the phone and ask them to talk to your attorney and give a written statement; let them know we are going to be calling. Everyone swaps cell numbers at work. At minimum, get their cell numbers, try to get more contact information, including email. You should not end the interview without a list.

In federal court “DECLARATION OF [NAME] PURSUANT TO 28 U.S.C. § 1746 UNDER THE PENALTY OF PERJURY” is a sworn statement. Use this language. You have to tell them they are signing a statement under oath, explain.

Will this obviate depositions? What if they move outside the 100 mile subpoena range?

Strike while the outrage is fresh, or at least not forgotten.

Nothing is more helpful than getting witness perspectives.

What does it mean if there are no witnesses?

You can win your case right now. This gets you past summary judgment. You can look to damages.

Provision of representation of your third party witnesses to guard against employer harassment should be routine, especially those still employed. Obtaining representation for these witnesses could be expensive, however, we NELA/NY member routinely do this for free each other, arranged through the listserv. You have all joined NELA/NY?

Documents and ESI which corroborate Harassment and Reporting

Ask your prospective client about all forms of ESI, emails, tweets, IMs, Facebook and MySpace communications. Harassers love this stuff. Did she receive a love letter, chocolates with a card?

Often there is ESI which corroborates the reporting as well. See Exhibit E.

Consider advising your client to tape, legal when all parties in NY. Reporter’s website on legality, 12 all party states. Visit here.

How were you affected by the harassment?

Serious prolonged or violent harassment causes serious problems. There are typically low lost wages damages in these cases, sometimes none.

This is a preliminary interview but you need to cover some basics. Ask about treatment. Ask “who went through this with you, family friends, coworkers, did they notice changes. See Exhibit C, A Recipe for Emotional Distress - Proving Damages in A Hostile Work Environment Case, the basics

Send a Document/ESI Preservation Letter Immediately Upon Concluding You Are Likely to Take the Case
See Exhibit D for a sample letter
See Exhibit E for a brief article on discovery of ESI

Understanding and Prosecuting Hostile Work Environment Claims (Continued)