Keywords:"Sexual Harassment, penis, nipple, kiss, shoulder massage, Title VII, 42 USC 2000e, New York Law, Executive Law, Quid Pro Quo, Hostile work environment, Single incident, discrimination, sexual assault, sexual touching, intimidation, ridicule, insult, severe, pervasive, conditions of employment, working environment, intentional infliction of emotional distress, beyond bounds of decency, utterly intolerable in a civilized society, outrageous in character, atrocious, Farragher v City of Boca Raton, Burlington Indus, Inc. v Ellerth, Matute v. Hyatt, Carrero v. New Yrk City Housing Auth, Harris v. Forklift Sys, Inc., Yaba v Roosevelt, Meritor Savings Bank FSB v. Vinson, Bender v City of New York, "

Approximately 1 year ago, the United States Supreme Court stated that an employer can protect itself from sexual harassment claims when a potential claimant failed to use existing procedures to rid him/herself of unwanted harassment. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998).

Last week, the Federal Court for the Southern District of New York in Matute v. Hyatt decided that even though Hyatt had a sexual harassment policy that prohibits harassment of employees on the basis of sex and advises employees to report immediately sexually harassing behavior, there was a question of fact whether or not Hyatt used reasonable care in order to correct and prevent sexually harassing behavior since it had notice of one prior potentially damaging act by the same employee.

The plaintiff alleged that his immediate supervisor committed five acts that may be described as sexually harassing. The plaintiff was terminated from his employment during a probationary period allegedly for cause. The supervisor claims that the alleged acts of harassment never happened. The supervisor also alleges that the information for terminating the plaintiff was based upon the job evaluation of the supervisors assistant.

The court stated:

"Nor is defendant entitled to summary judgment on the grounds that it may take advantage of the affirmative defense to hostile work environment claims that was created in Faragher and Burlington. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998). In order to be entitled to this defense, Defendants must show that (1) Hyatt used reasonable care in order to correct and prevent sexually harassing behavior, and (2) plaintiff unreasonably failed to make use of opportunities provided by Hyatt to remedy the sexually harassing behavior.

Without addressing the second prong, it is apparent that triable issues remain with respect to the first prong of this test. Plaintiff asserts that previous actions by Taylor put Hyatt on notice regarding Taylor's propensity for sexual harassment. Plaintiff cites one example where Taylor allegedly made sexually suggestive comments to another employee while Taylor was in the shower. (Pl. Mem. at 15.) Hyatt was aware of this incident, where the allegedly harassed employee did not characterize the incident as sexual harassment, but did believe Taylor's comment to be an inappropriate joke. (Defs.' 56.1 P96.). (Defs.' 56.1 P94.) Although defendant disputes that these comments were sexually harassing, the reasonableness of Hyatt's actions in response to this incident are questions for a jury to decide."

The moral of the story is that even a good anti-harassment policy may not be sufficient to protect the employer unless the employer documents each and every case of alleged harassment, makes findings that the alleged harasser either did not act inappropriately, went through training/counseling or other discipline/education or was dismissed due to the harassment. Such a draconian policy is needed to eliminate the possibility that a jury could find that the employer knew the propensity of the harasser to act inappropriately but failed to act or accepts harassment in the work place.