Employment Law Daily Harassment, retaliation claims based on peeping customer will go to trial
Thursday, December 21, 2017

Harassment, retaliation claims based on peeping customer will go to trial

By Joy P. Waltemath, J.D.

Hostile work environment and retaliation claims by a sales associate for Urban Outfitters, who claimed the company’s response to two customers’ sexually harassing actions was inadequate and exacerbated by the actions of its security guard will advance to trial, ruled a federal district court in New York. Specifically, the associate’s claims under New York City Human Rights Law for customer harassment and retaliation were based on one male customer photographing or videotaping up her skirt while she was on the stairs in the store and another customer reaching for her face, attempting to put his thumbs into her mouth, licking her cheek, and grabbing her dress. A jury could find this conduct sufficiently severe and that Urban Outfitters had notice but failed to take adequate corrective action. The court also found sufficient evidence that the associate’s internal complaints were protected activity and that her reassignment to work the back stock room was materially adverse to support her retaliation claim under both city and state law. But summary judgment was granted against her constructive discharge claims under both laws and against her claim based on customer harassment under the stricter New York State Human Rights Law (Swiderski v. Urban Outfitters, Inc., December 18, 2017, Oetken, P.).

In 2015, the court had rejected a motion to dismiss her claims, which in brief alleged that the security guard caught a male customer with a camera pointed up her skirt, took his cell phone and deleted the pictures and videos, and escorted him out of the store, but failed to provide her with the customer’s ID information so she could file a police report. She complained to at least three members of management; ultimately, the security guard was disciplined for mishandling the incident. Afterwards, he allegedly urged her to drop the matter because she was stirring up trouble, said he “wouldn’t be there to help her,” and began touching her inappropriately (physical touching was prohibited) when he “screened” her for loss prevention when she left the store.

Months later, a second customer grabbed her face, put his fingers in her mouth, licked her face, and grabbed her dress before another security guard removed him from the store. The police were not called. She continued to complain to management, after which she was assigned to work back stock duties, apparently the store’s most undesirable assignment. She ultimately quit and sued alleging a sexually hostile work environment, retaliation, and wrongful discharge under New York state and city law.

Customer-based hostile work environment. Under city law, the sales associate did not need to show that the harassment was sufficiently severe or pervasive to alter her conditions of employment” but to show only “unwanted gender-based conduct.” The store argued neither incident of customer harassment was sufficiently severe or pervasive. But the court found the second customer incident alone was sufficiently severe to alter the conditions of her employment because it involved direct contact with her intimate body parts—reaching for her face, fingers in her mouth, licking her cheek, and grabbing at her chest and the front of her dress. That alone was sufficiently severe to create a hostile environment, but that wasn’t all: in the first incident, a male customer took photographs and videos up her skirt without her knowledge.

Coworker-based hostile environment. Then there was the aggressive conduct of the security guard, which the store characterized as “isolated incidents of little to no consequence” that were not sex-based. But the court disagreed. Although not all of the security guard’s comments were actionable, after the first incident, the security guard approached the associate until she was “against the back wall of a cash register,” called her a “stupid bitch,” got right in her face, and hissed at her that “he would not be there to help her next time.” Plus, he arranged to be the one who screened her when she left the store, and she alleged he reached inside her jacket and touched her sides, her waist, and her hips, even though physically touching employees during screenings was prohibited. Together, those factors satisfied the associate’s burden that the harassment was sufficiently severe or pervasive to create a hostile work environment.

Imputed employer liability for coworker harassment. Second Circuit precedent maintains that courts impute employer liability for harassment by non-employees according to the same standards for non-supervisory coworkers, as qualified by the extent of the employer’s control and any other legal responsibilities of the employer as to non-employees. Urban Outfitters argued it couldn’t be liable here because “it took effective remedial action immediately upon learning of each customer’s misconduct” (e.g. deleting the photos and ejecting the first customer, ejecting the second customer). Under the NYCHRL, however, once it has notice that its employees are being harassed, an employer’s remedial obligation is not necessarily satisfied by ejecting the offending customer from the store: “Appropriate corrective action” may also require “proactive steps,” said the court.

Although ejecting each offending customer was probably necessary to meet the employer’s remedial obligations, it was not sufficient as a matter of law. In fact, there was no evidence of action to prevent future harassment, no employee training, no investigation of either incident, no trespass warning to either customer, and no specific policy on handling customer harassment, despite the associate’s complaints to multiple management employees. A reasonable jury could conclude that the store’s lack of a policy was negligent and that it failed to take reasonable corrective action. And, while the store claimed it had no advance notice of the customer harassment, even before the first incident management was aware that customers came into the store and tried to look up the skirts of female employees, which constituted notice under the NYCHRL. Because a genuine factual dispute existed as to whether the store failed to take immediate and appropriate corrective action once it knew of the customer’s conduct, a jury could impute that conduct to the employer.

But not under state law. That wasn’t enough under the stricter NYSHRL standard, which requires a showing that the employer “became a party to the discriminatory conduct” by encouraging, condoning, or approving of the conduct, which was not the case here, said the court, granting summary judgment to the store on this state law discrimination claim.

Imputed liability for security guard’s harassment. Under both city and state law, the court found the security guard’s conduct could be imputed to the store. The associate complained to the manager of the women’s department about the security guard’s aggressive conduct after the first incident, which was sufficient notice under city law. However, the complaint was never reported to anyone else nor was any meaningful action taken, which was a failure to take “immediate and appropriate corrective action” to address his harassing conduct. And even under the stricter NYSHRL standard, which required both notice and “condonation,” the store had notice and apparently took no action in response to her complaints—enough to deny summary judgment, concluded the court.

Retaliation. Urban Outfitters argued both no protected activity and no adverse employment action in response to the retaliation claim. However, the associate testified that she complained several times about how the first customer harassment incident was handled, and the court would not conclude as a matter of law that she lacked a good faith, reasonable belief that the store’s failure to act violated the law. Her complaints about the security guard’s conduct after that incident also evidenced a reasonable, good faith belief that this conduct amounted to harassment on the basis of sex and were protected. Finally, under both state and city law (which required only action reasonably likely to deter her from protected activity), the associate’s reassignment to work in the back stockroom, among other things, was an adverse employment action for retaliation purposes because of evidence that assignment was generally perceived to be undesirable and even punitive. Summary judgment was denied as to the retaliation claims.

Constructive discharge. Even if the working conditions were so unpleasant as to be objectively intolerable, the associate’s constructive discharge claim failed because there is no evidence that Urban Outfitters deliberately created these conditions. That claim was dismissed on summary judgment.

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