Criteria for Sexual Harassment Lawsuit Against Employer Explained

The Third Department determined plaintiff had raised questions of fact about whether her employer was aware of and condoned the alleged harassment, allowing her sexual harassment suit to go forward.  The court explained the relevant analytical criteria:

Pursuant to Executive Law § 296 (1) (a), it is “an unlawful discriminatory practice [] [f]or an employer . . ., because of an individual’s . . . sex, . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment” … . An employee may succeed on a sexual harassment claim pursuant to Executive Law § 296 (1) (a) upon establishing that he or she is a member of a protected group, is subjected to unwelcome sexual harassment based on his or her gender that affects a term, condition or privilege of his or her employment, and that the employer “knew or should have known of the harassment and failed to take remedial action” … . An employer will be liable for “an employee’s discriminatory act [where] the employer became a party to it by encouraging, condoning, or approving it,” and the term condonation includes, as relevant here, “[a]n employer’s calculated inaction in response to discriminatory conduct” … . Tidball v Schenectady City Sch Dist, 2014 NY Slip Op 08092, 3rd Dept 11-20-14