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Nice Boots, Nice Hair, and One Touch Makes for Sexual Harassment Under NYC Law

The recent court decision in Suri v. Grey Global Group, Inc., should serve as a wake-up call for employers in New York City amidst the #MeToo movement.  In Suri, the trial court granted the employer’s motion to end the case.  The employee alleged a hostile work environment based on gender due to three incidents: (1) the supervisor/alleged harasser said the employee had nice hair; (2) had nice boots; and (3) once touched her knee and squeezed lightly for a few seconds when they sat next to each other in a meeting.  The employee admitted she did not say anything to the alleged harasser when he touched her leg and it never happened again.  However, in light of the “nice boots” and “nice hair” comments, she considered the touching a sexual advance.  After this incident, the employee claimed her work life was miserable until she was fired as part of a reduction in force. 

To the surprise of many employers, the Appellate Division, First Department reversed the trial court’s dismissal and held the case should proceed to a jury!  The appellate court held the New York City Human Rights law was to be read broadly.  The employee offered evidence the harasser used his position to implicitly demand sexual favors and when she rebuffed him, he made her life miserable.  Based on this evidence, the appeals court held the case should proceed to trial.  Notably, the decision was 3-2 with a strong dissent. 

In reaching its conclusion, the appellate court explained sexual advances are not always explicit.  It should be left to a jury to decide whether the supervisor’s knee touching was a sexual advance and whether he created a hostile work environment for the employee. 

For employers in New York City, this decision is alarming.  First, the comments “nice boots” and “nice hair” are likely perceived by many managers as being friendly rather than sexually suggestive.  Now your business must make a decision – will you ban all comments on someone’s looks or take the risk?  An unfortunate decision employers in New York City must now make.   Second, what about touching in the workplace.  In New York City, maybe the answer is no touching unless there is a business justification, e.g., appropriately touching someone who cannot hear or see you to announce you are passing by in a confined space.  While it appears farfetched, these issues seem plausible under the Court’s ruling. 

New York City employers should take very seriously any claims of alleged harassment or touching even if, at first glance, the touching does not appear to be sexually suggestive.  Employers should conduct prompt and thorough investigations into these types of allegations.  This is especially true in light of the new sexual harassment laws which took effect in New York State in October 2018 and will take effect in New York City in April.

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.