A recent decision by the U.S. Court of Appeals for the Second Circuit highlights critical concerns for both public and private employers regarding sexual harassment claims and cases involving pro se plaintiffs.

The plaintiff in this case appealed from a judgment of the U.S. District Court for the Eastern District of New York dismissing her complaint alleging disparate treatment on the basis of race and gender, retaliation, and sexual harassment by her employer, defendant New York State Division of Parole, in violation of Title VII. The district court granted the Division’s motion for summary judgment dismissing the complaint. The district court held, as to the sexual harassment claim, that the alleged touching of the plaintiff’s breasts by a female Division supervisor was minor and incidental and did not occur because of her sex. On appeal, plaintiff contended that the supervisor’s touching was sufficiently abusive to support a hostile work environment claim and that summary judgment was inappropriate because genuine issues of fact to be tried existed. The Second Circuit agreed and reinstated the hostile work environment claim.

In 2005, the plaintiff worked in a Division office in Queens, New York. The focus of her sexual harassment claim is that on three occasions, her area supervisor made sexual advances by touching her breasts. In the complaint filed with the New York State Division of Human Rights, the plaintiff alleged that on April 19, 2005; June 16, 2005; and September 15, 2005, her supervisor sexually harassed her by brushing up against her breasts while the plaintiff was sitting at a computer, and that she rubbed the plaintiff’s hand.

An employer is presumptively liable for sexual harassment in violation of Title VII if the plaintiff was harassed not by a mere co-worker but by someone with supervisory authority over the plaintiff, although in certain circumstances an affirmative defense may be available. If the harassment culminated in a tangible employment action, such as discharge, demotion, or undesirable reassignment, the employer is held strictly liable, and no affirmative defense is available. In the absence of a tangible employment action, the employer may avoid liability by establishing an affirmative defense on which it has the burden of proof, which involves two elements. The first is that the employer exercised reasonable care to prevent and correct promptly any sexual harassment behavior. The second is that the plaintiff employee unreasonably failed to take advantage of any preventable or corrective opportunity provided by the employer or to avoid harm otherwise.

In this case, the plaintiff testified that she did complain to the Division’s Director of Human Resources. The Director did not dispute the plaintiff’s assertion, as she had orally complained to him that her supervisor was sexually harassing her. No written complaint was received. The defendant did not take any preventive or corrective action — rather it contended that plaintiff did not sufficiently complain. The court held that an issue of fact existed to be resolved by the jury as to the sufficiency of the plaintiff’s complaint about her supervisor’s conduct.

The lesson from this matter is not to take a pro se plaintiff’s complaint lightly. Although a pro se plaintiff is not represented by counsel, the law of sexual harassment is clear. The courts will make exceptions procedurally for pro se plaintiffs to assist them through the litigation process. Any complaint to an employer of sexual harassment should be fully investigated and documented in order to properly defend the matter should litigation occur.

For more information about how this may impact your business, or for assistance with preventative measures to help avoid facing claims under Title VII, please contact:

• Jonathan M. Bernstein (518.935.4240; jbernstein@goldbergsegalla.com)
• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Labor and Employment Practice Group