An employee who experiences sexual harassment often finds himself or herself the victim of retaliation. After complaining to management or human resources about the situation, instead of getting help resolving the problem, some people get fired or punished.
Sexual harassment is illegal under federal, state and New York City laws. The Civil Rights Act of 1964, New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL) also make retaliation illegal. The laws that protect you from employment discrimination and harassment prohibit your employer from retaliating against you for trying to put a stop to it. When an employer takes an adverse action against you for exercising a legal right, you may be able to recover significant monetary compensation for both the discriminatory behavior and the retaliation. In fact, for many employees, the retaliation claim may be the stronger of the two and can be successful even if unable to prove unlawful discrimination.
In a case filed recently in New York Supreme Court, the general manager (GM) of a restaurant complained to its owner about the sexual harassment that some employees were experiencing. The owner allegedly fired the GM on the spot. This employee sued, claiming the owner terminated his employment in direct retaliation for complaining about the harassment and asking the owner to stop the behavior of the employees responsible.
Carlos Montoya (Montoya) began working in March 2016 as the GM of Valbella, a popular Italian restaurant with two locations in New York City and one in Connecticut. Montoya filed a lawsuit in New York Supreme Court on September 21, 2017, against Valbella Restaurants (Valbella) and its principal owner David Ghatanfard (Ghatanfard) for unlawful retaliation in violation of NYSHRL and NYCHRL.
Montoya’s court papers contain allegations that in April 2017, approximately one year after being hired to oversee the day to day operations of the Valbella located in Midtown Manhattan, two employees approached him. The workers asked for help because they were experiencing harassment. According to the filed complaint, a female bartender reported to Montoya that “certain male staffers” were making inappropriate and offensive comments about her body. The complaint also claims that a gay male employee told Montoya a server was harassing him based on his sexual orientation. The harassment included calling the male worker by “the female version of his name.”
Montoya claimed that his role as general manager did not allow him to discipline employees without authorization from Ghatanfard, the owner of the restaurant. Montoya claimed that he spoke with the staff members about the inappropriate comments and behavior, but the individuals continued their harassment of the victims.
In the complaint, Montoya alleged that when the behavior did not stop, he brought the issues to Ghatanfard’s attention at the May 2017 managers’ meeting. Montoya asked Ghatanfard to authorize action against the offending workers such as terminating or suspending their employment. Montoya claimed that Ghatanfard gave no such authorization and appeared to ignore his concerns.
A few weeks later, Montoya expressed to Ghatanfard that he was worried about the failure to respond to the employees’ complaints about sexual harassment. According to Montoya, Ghatanfard “became angry and summarily terminated Plaintiff’s employment on the spot, stating, ‘I don’t need you anymore.’”
As stated earlier, NYSHRL and NYCHRL prohibit employers from retaliating against employees who try to stop, complain about or help investigate harassment and discrimination. Retaliation can include most adverse actions related to employment such as firing or demoting someone.
In a retaliation claim, an employer will often invoke the defense that the employee in question was “punished” for reasons unrelated to the sexual harassment or discrimination. For instance, Valbella asserted that Ghatanfard fired Montoya because he was a terrible employee. Without additional information, it is hard to tell if this could be a successful defense. Courts will look to a multitude of factors to determine if an employer’s actions are retaliatory including:
The employer’s timing in this matter may prove to be the most crucial factor. If Montoya’s allegation is true, that Ghatanfard fired him immediately after raising concerns about sexual harassment, it does appear to be a retaliatory decision. Was Montoya a terrible employee? He says no. In fact, Montoya’s complaint contains allegations that he did such a good job, the restaurant owes him tens of thousands of dollars in unpaid commissions. Montoya hopes to recover payment of these wages as well as other monetary damages for the retaliation.
Sexual harassment and gender discrimination are illegal under New York City, New York State and federal law. Retaliation is also. If you have been dealing with workplace sexual harassment or discrimination and your employer did one or more of the following;
You may be able to file a retaliation claim. You might be entitled to collect compensation as well as receive reinstatement or other action to make you whole again.
Call Leeds Brown Law, P.C. for a free evaluation of your claim for retaliation, gender discrimination, and sexual harassment today at 1-800-585-4658.
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