Sexual Harassment Claims (Quid Pro Quo, Hostile Work Environment) Survive Summary Judgment Against Hyatt

In Franco v. Hyatt Corp. d/b/a Hyatt Times Square et al, No. 12422, 153152/14, 2019-3451, 2020 WL 7346434 (N.Y.A.D. 1 Dept., Dec. 15, 2020), the court, inter alia, reversed summary judgment granted in favor of defendants on plaintiff’s quid pro quo and hostile work environment sexual harassment claims asserted under the New York State and City Human Rights Laws.

The court summarized the “black letter” law as follows:

The issue in a quid pro quo sexual harassment case brought under the State Human Rights Law is whether one or more employment decisions are linked to unwelcome sexual conduct. Sexual harassment occurs when such unwelcome sexual conduct is the basis, either explicitly or implicitly, for employment decisions affecting compensation or the terms, condition or privileges of employment (Matter of Father Belle Community Ctr v New York State Div. of Human Rights, 221 A.D.2d 44, 50 [4th Dept 1996], lv denied 89 N.Y.2d 809 [1997]; see Suri v. Grey Global Group, Inc., 164 AD3d 108 [1st Dept 2018], appeal dismissed, 32 NY3d 1138 [2019] ). An employer can also be held liable for a hostile work environment when it encouraged or acquiesced in the unwelcome sexual conduct by an employee or subsequently condoned the offending behavior (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 311 [2004]; Sukram v. Anjost Corp., 72 AD3d 491 [1st Dept 2010). Proof of condonation and acquiescence is not necessary where discriminatory conduct is perpetrated by a high-level managerial employee or someone sufficiently elevated in the employer’s business organization to be viewed as its proxy (Randall v. Tod–Nik Audiology, 270 A.D.2d 38 [1st Dept 2000]; Father Belle, 221 AD3d at 54–55). Under the City Human Rights Law, gender discrimination rests on the broader consideration of whether a plaintiff has been treated less well than other employees because of his/her gender (Suri, 164 AD3d at 114; Williams v. New York City Hous. Auth., 61 AD3d 62, 78 [1st Dept 2009], lv denied 13 NY3d 702 [2009] ). Whether brought under the State or the City Human Rights Law, the claim will not succeed if the offending actions are no more than petty slights or trivial inconveniences.

Applying the law, the court held:

The gravamen of defendants’ argument in favor of dismissal of the discrimination claims is that the offending actions plaintiff attributes to defendants are no more than petty slights or trivial inconveniences. We disagree. Although defendants deny that any of the acts claimed by plaintiff occurred, or that he made timely complaints about the offending behavior, the court is bound to consider the disputed facts in favor of the non-movant (Vega v. Restani Const. Corp., 18 NY3d 499, 503 [2012] ). Disputed factual issues, especially those that require resolution of credibility issues, are generally unsuitable for summary adjudication (S.J. Capelin Assoc., v. Globe Mfg. Corp., 34 N.Y.2d 338, 341 [1974] ).

Plaintiff testified that his supervisor, defendant Hall, made repeated sexual advances towards him, including reaching out to touch his face and holding his hand in an elevator while they were alone. She also initiated conversations that made him uncomfortable, telling him she had a “crush” on him, telling him she was single and twice inviting him to her home to repair “a hole” in her apartment. In one conversation, plaintiff claimed Hall said she had a tattoo, adding that “You have to undress me to see it.” Plaintiff further testified that after he rebuffed Hall’s sexual advances, she repeatedly brought him to the Human Resources manager’s office to complain about his work product and that she solicited complaints about him from other coworkers. Plaintiff claims that he complained to HR about Hall’s behavior in December. In January he was told that either he could resign or he would be fired. If believed, a trier of fact could find that these actions, especially when considered holistically, were unwelcome sexual conduct. As we have previously recognized, sexual advances are not always explicit, and the absence of a supervisor’s direct pressure for sexual favors as a condition of employment does not negate indirect pressure or necessarily doom the claim.

The court also held that defendants were not entitled to summary judgment on plaintiff’s retaliatory termination claim.

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