It's well-established that employees who claim they have been subjected to a hostile work environment but don’t take advantage of their employer’s complaint process won’t get a chance to take their cases to court. Ever since the landmark U.S. Supreme Court decisions in the Faragher and Burlington Industries cases, employers can use their complaint processes as a defense against co-worker harassment.
But what about under state laws, such as the New York State Human Rights Law (NYSHRL)?
Following a recent 2nd Circuit Court of Appeals case, it remains undecided whether there is a similar defense available under state discrimination laws. That means employers may want to be doubly proactive in efforts to stamp out hostile work environments.
Recent case: Buntin McPherson alleged that his employer violated both state and federal anti-discrimination laws by paying him less than workers of other races and nationalities, and subjecting him to a hostile environment.
But he never channeled his concerns through the company’s internal complaint process.
The federal court dismissed his Title VII claims but told McPherson he could refile his state law claims with the New York court system. The judges reasoned that employers with complaint processes have a defense if their employees don’t use these processes, but that New York law was not so clear. (McPherson v. NYP Holdings, No. 05-5404, 2nd Cir., 2007)
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