Under federal law and New York state law, merely rejecting a supervisor’s sexual advances without reporting the conduct to HR probably isn’t protected activity. However, that’s not the case under the New York City Human Rights Law (NYCHRL).
Recent case: When Daniela started working at a New York City gym, she received a copy of the handbook. It included a sexual harassment policy and instructions on how to report harassment. There was also a policy stating that it was a dischargeable offense to use a personal cellphone at the front desk (where Daniela worked) or on the gym floor.
Daniela soon found herself attracting the unwanted attention of the gym manager. On her day off, he called her in for a staff meeting. After the meeting, he asked her to stay in his office, exposed himself and asked her to masturbate him. She did, and afterward he told her not to tell anyone or else she would be replaced. After another meeting, he demanded oral sex and reminded her again he could replace her. She protested but again complied.
The next incident occurred under similar circumstances, but this time, he pulled down her pants and had intercourse with her.
When he next approached her, she pushed him away. Shortly after, he accused her of using her cellphone at work. She finally went to HR, which promptly investigated and fired the manager.
Daniela sued, but her Title VII and state retaliation claims were dismissed because she hadn’t engaged in protected activity before the manager tried to discipline her.
However, the court said her NYCHRL retaliation claim could proceed.
It reasoned that by pushing him away during the final last encounter, she was protesting illegal activity (sexual harassment) and therefore the phone write-up could be seen as retaliation. (Hernandez v. PFIP, No. 14-CIV-4069, SD NY, 2015)