Posts tagged with "Faragher-Ellerth"

Faragher/Ellerth Defense Applied to Protect Employer from Liability for Sexual Harassment

In a recent 11th Circuit Court case decided this year, the Court applied the Faragher/Ellerth defense to bar an employee’s sexual harassment suit under Title VII and state law.[1]

Case Details

There, a male hairdresser filed suit against his employer alleging sexual harassment in violation of Title VII and Florida’s Civil Rights Act.  The employee alleged that his employer Creative Hairdressers was liable for allowing his former manager at a Hair Cuttery salon to sexually harass him. The United States District Court for the Southern District of Florida granted the employer’s motion for summary judgment, finding that there were no genuine issues of material fact that Hair Cuttery exercised reasonable care to prevent and correctly promptly any sexually harassing behavior, and that White unreasonably failed to take advantage of preventive or corrective opportunities or to avoid harm.

Avoiding Liability Under the Faragher/Ellerth Defense

The Supreme Court in Faragher v. City of Boca Raton[2] and its companion case Burlington Industries, Inc. v. Ellerth[3] recognized certain affirmative defenses an employer can assert to preclude liability when an employee alleges sexual harassment by a supervisor.

Even if an employee establishes a prima facie case of sexual harassment, an employer can avoid liability under the Faragher/Ellerth defense if the employer shows (1) that it exercised reasonable care to prevent and promptly correct harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer, or to otherwise avoid harm. Both elements must be satisfied for the employer to avoid liability, and the employer bears the burden of proof on both elements.

In affirming District Court’s grant of summary judgment in favor of the employer, the 11th Circuit held that the Faragher/Ellerth defense applied to bar the employee’s claims under Title VII and the FCRA.  The Court recognized that the undisputed evidence demonstrated that Hair Cuttery had promulgated and adequately disseminated sexual harassment policies and complaint procedures to its employees.

Further, the court held that the employee failed to promptly take advantage of Hair Cuttery’s sexual harassment policies and complaint procedures by not promptly notifying the company of his harassment.[4]

Failure to follow employer harassment policies can prevent a valid harassment claim.  If you are the victim of sexual harassment or discriminatory treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York City, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County.

Should you have any questions workplace discrimination or any other employment law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] White v. Creative Hairdressers Inc., 11-16121, 2013 WL 203312 (11th Cir. Jan. 18, 2013)

The Best Employment Lawyers in Connecticut and New York

Employment Discrimination Lawyers in New York and Connecticut

State and national laws protect employees from being subjected to discriminatory treatment and termination in the workplace because of the employee’s gender, race, age, national origin, religion, pregnancy, sexual orientation, or disability. If you have reason to believe that you have experienced discrimination on the job, you should contact Joseph C. Maya, Esq. right away. Mr. Maya has a national reputation for successfully handling employment discrimination matters. He can be contacted via e-mail at JMaya@Mayalaw.com or by dialing (203) 221-3100 in Connecticut or (212) 682-5700 in New York.

Laws Protect Employees from Sexual Harassment in the Workplace

These laws also protect employees from sexual harassment , a hostile work environment, and from being touched in an offensive manner in the workplace by supervisors, coworkers, or even clients. Employees have a right to stop discriminatory conduct in the workplace. If an employee tries to stop that conduct or notifies a supervisor that discriminatory conduct has occurred, that employee also has protection, under state and national laws, from retaliation by the supervisor or employer.

In fact, any person who complains to his or her superior or employer has protection from the law against retaliation by his or her employer. If you feel you might be a victim of racial, gender, or sexual discrimination on the job, you should contact Joseph C. Maya, Esq. at JMaya@Mayalaw.com or by dialing him at (203) 221-3100 or (212) 682-5700. Let our experience guide you and protect your legal rights at work.


Serving Stamford, Greenwich, Norwalk and surrounding communities including Darien, New Canaan, Westport, Wilton & Weston; the greater Bridgeport area including Fairfield, Stratford, Monroe & Redding; the greater Danbury area including Ridgefield, Newtown & Bethel; and the communities surrounding Milford and New Haven. We also serve all of Westchester and New York Counties.

Claim Denied for Not Notifying Her Employer of Harassment

In a case, the Supreme Court of New York denied a female employee’s complaint for sexual harassment and constructive discharge because she failed to inform her employer of the alleged harassment, thereby not allowing it to take any corrective measures.[1]

Case Details

In 2009 the female employee was hired as a bookkeeper to work for Bulletproof, a large horse breeding and racing company owned by Jeffrey.  Jeffrey’s brother David owned two businesses, a hedge fund and his own horse racing business, Perfect World. The employee worked at Bulletproof for two weeks, then did not go back or even call to quit.  Instead, she filed a complaint of sexual harassment and constructive discharge against the two brothers and their respective companies, alleging that David was her boss and he sexually harassed her to such an extent she could not return to work even though she needed the money.[2]

At issue in the case was identity of the plaintiff’s employer.  All of the female employee’s claims arose from sexual advances made by David and were premised on the contention that David was her supervisor. However, as the Court indicated David, the alleged harasser, had neither an ownership interest in Bulletproof, which paid plaintiff’s salary, or the power to do anything in that company.  Jeffrey testified that David had absolutely nothing to do with Bulletproof.   Similarly, the employee testified that when she started work, she understood that her supervisor would be Jeffrey.

The Court’s Decision

As the Court noted, this was the “first time that the identity of the plaintiff’s supervisor is the subjective element” of a sexual harassment claim in New York.  To resolve this threshold issue the Court turned to the U.S. Supreme Court stated, “If, in the unusual case, it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, the victim’s mistaken conclusion must be a reasonable one…. Apparent authority exists only to the extent it is reasonable for the third person dealing with the agent to believe that the agent is authorized.”[3] 

While the Court had doubts as to whether a reasonable person in the plaintiff’s position would have thought that David was her supervisor, it resolved the uncertainty in her favor and proceeding as if David where her supervisor.

The Faragher-Ellerth Defense

The Court, nonetheless, denied the employee’s claim, finding that the Faragher–Ellerth defense applied to Bulletproof to excuse any liability.  Under federal and state law, an employer vicariously liable for the discriminatory conduct of a managerial or supervisory employee may elude liability by asserting the so-called Faragher–Ellerth defense.

For this defense to succeed, the employer must show that (i) no adverse employment action (e.g., termination) was taken as part of the sexual harassment; (ii) the employer took prompt corrective action; and, (iii) the plaintiff unreasonably failed to avail herself of “corrective opportunities provided by the employer or to avoid harm otherwise”[4]

How did the court reach this decision?

According to the Court, the employee could not substantiate her claim of constructive discharge, and there was no evidence of any other adverse employment action. She was not fired; she left of her own volition. “Unless conditions are beyond ordinary’ discrimination, a complaining employee is expected to remain on the job while seeking redress.” Here there was no evidence to support a claim for constructive discharge, where a plaintiff must allege facts showing that a defendant “deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign.”[5]

Further the Court observed that “Since the plaintiff deprived Bulletproof of the opportunity to take ‘prompt corrective action’ by not informing anyone of David’s harassment, she cannot show that Bulletproof ‘acquiesced in the discriminating conduct or subsequently condoned it’ instead of taking corrective action.”[6] 

Similarly, plaintiff unreasonably failed to avail herself of whatever corrective opportunities Bulletproof could have offered her if it had been given the chance. The employee did not even resign; she just left work one day and did not return the next, and when Jeffrey called her multiple times to find out what happened, she did not return his calls.  The Court held “under these circumstances, the plaintiff cannot state a claim against Bulletproof even assuming that David was her supervisor.”[7]

If you are the victim of sexual harassment or discriminatory treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County.

Should you have any questions about Title VII and workplace discrimination or any other employment law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] Poolt v. Brooks, 38 Misc. 3d 1216(A) (N.Y. Sup. Ct. 2013)

[2] Id.

[3] Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 759 (1998)

[4] Zakrzewska v. The New School, 14 N.Y.3d 469, 476–477 (2010)

[5] Polidori v. Societe Generale Groupe, 39 A.D.3d 404, 405–406, 835 (2007)

[6] Poolt v. Brooks, 38 Misc. 3d 1216(A) (N.Y. Sup. Ct. 2013)

[7] Poolt v. Brooks, 38 Misc. 3d 1216(A) (N.Y. Sup. Ct. 2013)

Damage Award in Sexual Harassment case reduced from $500,000 to $50,000

In a case before the Supreme Court of New York, the Court modified a $500,000 damage award for mental anguish from sexual harassment to $50,000.  The Court found the half million dollar damage award by the Commissioner of Human Rights excessive and stated, “In sexual harassment proceedings with the State Division of Human Rights, damage awards for mental anguish and humiliation must be based upon actual pecuniary loss and emotional injury; care must be taken to insure that the award is compensatory and not punitive in nature.”[1]

Case Details

The petitioner in the case was a female high school student employed by Young Legends, LLC in a franchise sandwich shop in the City of Norwich.  In January 2007 the teenage employee filed a complaint with the State Division of Human Rights alleging that Dale Blackwood, her supervisor and the owner of Young Legends, subjected her to sexual harassment during her employment.  She testified about Blackwood’s “touchy feely” interactions with female employees and offensive sexual remarks.[2]

In particular Blackwood put constant pressure on the petitioner to visit him alone in his apartment and when she eventually did so, he forced her to engage in sexual intercourse.  When Blackwood asked her to return to his apartment, she refused.  In a series of angry, insulting text messages he told her that her refusal meant she was quitting her job.

The Damage Award

Following a public hearing the Administrative Law Judge determined that the petitioner had been subjected to quid pro quo and hostile work environment sexual harassment and that Blackwood was personally liable.  The Judge recommended a damage award of $1,218.75 for lost wages and $25,000 for mental anguish and humiliation. On administrative review, the Commissioner of Human Rights modified the order by increasing the mental anguish award to $500,000.[3]

On appeal the Supreme Court of New York indicated that in sexual harassment and discrimination proceedings with the State Division of Human Rights, damage awards for mental anguish and humiliation must be based on actual pecuniary loss and emotional injury.  Damage awards are meant to compensate the victim rather than be punitive in nature.  While Blackwood’s conduct was completely reprehensible, the court compared the evidence to similar sexual harassment and discrimination cases to conclude that the Commissioner’s award was excessive and reduced it to $50,000.[4]

The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about a sexual harassment claim or workplace discrimination or any other employment law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] New York State Div. of Human Rights v. Young Legends, LLC, 90 A.D.3d 1265, 1269-70 (2011)

[2] Id. at 1266.

[3] Id.

[4] Id. at 1270.

School Secretary Wins $100G Discrimination Suit

After seven years of allegedly suffering constant harassment as well as verbal and physical abuse, School Board 8’s long-time secretary won a $100,000 discrimination settlement with the Board of Education for their lack of disciplining Dennis Coleman. The controversial school board member at the center of the harassment case still remains on the board.

Two years after the lawsuit was filed and weeks before the trial was to begin, Board of Ed officials agreed to settle and pay Maureen Grogan $100,000. Grogan filed a lawsuit against the Board of Ed, former Chancellor Rudy Crew and board members Dennis Coleman and Rose Foley. The long-time secretary claimed that Crew and the Board of Ed did nothing to discipline Coleman after he repeatedly harassed her.

“Think of how many books and blackboards and pencils the Board of Ed could have bought with $100,000,” said Grogan’s attorney Joseph Maya of Maya and Associates, a law firm which specializes in employment discrimination lawsuits. During the course of the pre-trial hearings, Coleman’s counterclaims of slander were thrown out. However, despite the settlement over the way he allegedly harassed his employee over a seven-year period, Coleman remains on the school board. Calls made to him were not returned. Board of Ed officials also did not return the News’ calls.

Lawsuit Details

In the suit, Grogan claimed that she had been the target of harassment and discrimination when she refused to lie in an investigation into age discrimination. Coleman allegedly refused to hire a woman for a position with the school board because she was too old. Grogan told investigators this and was allegedly intimidated from that point on.

According to the lawsuit, in October 1992, Coleman called Grogan at her home and demanded that she recant statements she made to an agent of the Office of Special Investigations. The school board member allegedly threatened Grogan with losing her job with her husband out of work at the time and her two children in college.

Grogan told the Investigations agent about the alleged threats and thereafter was subjected to a daily hostile work environment which included being ignored, shunned and given contradictory instructions and work-related directions. She was also allegedly threatened with innuendoes regarding the timing of her pension vesting. The suit also claimed that Coleman would repeatedly yell at her over trivial matters such as his mail.

As a result, Grogan said she was forced to see a psychiatrist because of the stress placed upon her. She also took an extended leave in 1993. When she returned, Grogan found that most of her work, which included sensitive confidential material was turned over to a temporary office worker who was not a Board of Ed employee and was not qualified to handle confidential material.

Grogan’s Claims

Afterward, Grogan claims Coleman continuously made disparaging comments about her appearance, her intelligence and her ability to understand school board rules and regulations. During one school board meeting in December 1994, Coleman allegedly accused Grogan of discrimination and of being a member of the mafia. Grogan countered by filing a formal complaint alleging that Coleman was discriminating against her and was harassing her. After a review, no action was taken by the Board of Ed.

Grogan claims that after this incident Coleman began to publicly humiliate her at every school board meeting. The secretary wrote a letter to Crew’s office but no action was taken. Then in October 1996, Coleman assaulted Grogan during a heated exchange at a school board meeting. After a review of the matter, Crew scolded Coleman’s actions but did not discipline him.

Grogan was continuously harassed during meetings and on a daily basis until she quit from the strain in June 1999. She then filed a lawsuit against the parties.

By Daniel Gesslein

The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about workplace discrimination or harassment or any other employment law matter or to schedule a consultation, please do not hesitate to contact Attorney Joseph C. Maya, Esq.  He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.