2d Department sustains sexual harassment finding against Boston Market

The Appellate Division has sustained a finding from the New York State Division of Human Rights that found a female employee was sexually harassed at Boston Market in Orange County. The Second Department also holds the damages and penalties were proper under the New York State HRL. The liability finding broadly interprets the Human Rights Law in that Boston Market was liable because the harasser was the plaintiff's supervisor.

The case is In the Matter of the New York State Division of Human Rights v. Boston Market Corp, issued on October 14. 

Bless Clarke was hired by Boston Market in July 2017 as a cashier, food server, and crew member, working there until April 2020. Nicholas Foreman,worked at the restaurant from October to approximately November 19, 2019. Employees recognized Foreman as the manager even though his formal managerial status was unclear. In the presence of Assistant General Manager Robert Smith, Foreman made sexually inappropriate comments to Clarke. Smith giggled at these comments but did nothing to stop them. Foreman also sometimes pinched Clarke’s leg, prompting her to tell him not to touch her. Clarke additionally observed Foreman appearing intoxicated at work and reported this to Smith, who said he would notify General Manager Michele Carbon.

On November 18, 2019, Foreman began following Clarke at work. She attempted to avoid him by moving into the dining room, but he hugged her, pinned her arms, and forcibly kissed her on the mouth. Clarke struck Foreman, ran to the bathroom, and began crying. Clarke reported the assault to Smith, who contacted Carbon. Carbon instructed Smith to send Foreman home. Smith told Clarke to remain in the bathroom while Foreman was directed to leave. Ten minutes later, Clarke emerged and discovered that Foreman was still present. He apologized and claimed he had been “just trying to take the sickness” out of her, referring to her cold. Foreman was sent home. The following day, Carbon reviewed security-camera footage of the incident and terminated Foreman's employment.

Following the harassment and assault, Clarke experienced paranoia, depression, anxiety, and panic attacks that continued at least through December 2021. She avoided public places because she feared encountering Foreman and experiencing another panic attack. She also had difficulty eating. In May 2021, she began counseling, during which she discussed the sexual harassment.

On these facts, the SDHR found Boston Market liable for sexual harassment, awarding Clarke $75,000 for pain and suffering and fining Boston Market $50,000. The Second Department, which defers to the SDHR's factual findings in these cases, holds there is substantial evidence to support the liability findings and that the damages and fine are not excessive. 

The Appellate Division does not analyze the factual record or explain how the SDHR reached its determination, but what strikes me about this case is that the SDHR prevailed even though Carbon appeared to take remedial action after learning about the sexual harassment, firing Foreman the next day after reviewing the security camera footage. But, according to SDHR's appellate brief, Boston Market lost the case because the SDHR found that Foreman was an agent of the corporation. The brief states, "The Division found Boston Market liable for Mr. Foreman’s sexual harassment of Ms. Clarke. It reasoned that because Mr. Foreman is a supervisor, 'that harassment is attributable to Boston Market.'” SDHR appears to interpret the amended New York State HRL to permit liability in this circumstance, a departure from the prior statute (and Title VII), which required the plaintiff to show that management condoned or supported the harassment. What also clinched victory for the SDHR was that the restaurant did not stop Foreman when he had harassed Clarke on prior occasions.

To the extent an SDHR brief in the Appellate Division represents a policy pronouncement useful for other cases, here is the SDHR's analysis, departing from the First Department's interpretation of the NYSHRL as well as the Supreme Court's leading Title VII cases on this issue, Faragher and Ellerth:

the Division submits that the language of EXEC. LAW §296(1)(h), in conjunction with its legislative history and the evolution of a stricter liability standard in case law construing the state Human Rights Law in the wake of Faragher and Ellerth, weigh against the interpretation that the First Department has given this new subsection respecting vicarious liability as dependent on supervisory status. The provision of the New York City Code requiring that, in order for an employer to be liable under the City Human Rights Law, either the wrongdoer must be a supervisor or the employer condoned the discriminatory act has never had a statutory counterpart in the state Human Rights Law.