If you’re a regular eNews reader, you may remember our article in August 2019, explaining that New York and California have made it easier for employees to prove unlawful harassment. To avoid liability, a New York employer must now prove that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” We noted that: “It will be challenging for organizations to define conduct that is a ‘petty slight’ or ‘trivial inconvenience’.”
Well, we now have some indication of what kinds of remarks meet that standard. In O’Rourke v. National Foreign Trade Council, 2019 N.Y. Slip Op. 07489, (N.Y.A.D. 1 Dept., Oct. 17, 2019), the New York Appellate Division unanimously affirmed the trial judge’s decision to deny the employer’s motion to dismiss a gender discrimination case. Ms. O’Rourke alleged that her supervisor made numerous sexist statements such as: “You women are such sensitive flowers”; he “only supports humble and meek women”; Ms. O’Rourke was an “in your face woman”; he would “probably” treat male employees differently, including by grooming them for advancement; and his perception of Ms. O’Rourke as “a smart confident accomplished woman with an opinion might be the reason for [his] harsh treatment of her.”
The appellate court found these remarks “rose above the level of nonactionable petty slights or inconveniences and established differential treatment” of Ms. O’Rourke because she was a woman. The panel sent the case back for a trial on Ms. O’Rourke’s discrimination claim, as well as her claim that after she complained, her supervisor retaliated by taking away her ability to hire support staff, excluding her from projects, hiding information from her, publicly undermining her, and stripping her of planning responsibilities. Further, the supervisor allegedly threatened to “make the situation worse” for Ms. O’Rourke if she continued to complain.
What this means to you:
Your supervisors and managers are the front line of defense against harassment and retaliation. Only proactive managers and supervisors will be able to create and maintain the respectful workplace needed keep your organization productive and out of court.
Fair Measures focuses on creating respectful workplaces for businesses by training executives, managers, and employees about how to create a genuine and shared organizational culture based on values, policies, and laws. Call us today at 800-458-2778 or email us at training@fairmeasures.com to find out more about our in-person and online anti-harassment courses or to book a workshop.
Posted 11-12-2019
Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.
