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New York Federal Court Denies Summary Judgment Where Employer Refuses To Even Try To Prevent Workplace Sexual Assault

Edgar Rivera, Esq. and Leah Kessler

On December 18, 2017, in Swiderski v. Urban Outfitters, Inc., Judge J. Paul Oetken of the Southern District of New York denied the majority of defendant Urban Outfitters’ motion for summary judgment. Although Judge Oetken ruled that there was insufficient evidence for a reasonable jury to find that Plaintiff Tatiana Swiderski was constructively discharged from her position as a sales associate at Urban Outfitters, he allowed her hostile work environment and retaliation claims to proceed to trial. This decision is important because it reaffirms an employer’s responsibility under the New York City Human Rights Law (NYCHRL) to take proactive measures to prevent discrimination from customers where the discriminatory conduct is previously known to the employer’s managers.

Tatiana Swiderski was hired as a sales associate at a Manhattan Urban Outfitters store in 2013.  Shortly after her hire, a male customer was caught photographing or videotaping up Ms. Swiderski’s skirt while she was on the stairs. Brian McCabe, a loss prevention agent employed by Urban Outfitters, escorted the customer out of the store and deleted all the pictures and videos of Ms. Swiderski from the customer’s phone. Mr. McCabe, however, repeatedly refused to give Ms. Swiderski the customer’s identification information so that she could file a police report. Later, an assistant store manager told Ms. Swiderski candidly that Urban Outfitters was aware of least one other customer that used to come in and regularly sit under the stairs to look up the skirts and dresses of female employees. Ms. Swiderski then went to Emily McManus, a manager, who confirmed this to be the case. Ms. Swiderski made repeated complaints to Ms. McManus about how both Urban Outfitters and Mr. McCabe had handled the incident, and, after Urban Outfitters reluctantly gave her the customer’s contact information, she filed a police report against the customer.

Several weeks later, another customer physically assaulted Ms. Swiderski by reaching for her face, saying that he “wanted to see her teeth,” licked her cheek, and tried to put both of his thumbs into her mouth.  When Ms. Swiderski pulled away from him, he tried to grab her chest and the front of her dress.  Ms. Swiderski complained to an available co-worker, who, along with security, had the customer removed.  She then complained to management, who refused to call the police.

After these complaints, Urban Outfitters management assigned Ms. Swiderski to work the “back stock” for the first time.  She was allegedly told that she should “stop complaining because at least now people can’t molest you.” Despite her objections, Urban Outfitters also moved her to the night shift.  Ms. Swiderski ultimately quit.

At summary judgment, Urban Outfitters moved to have all Ms. Swiderski’s claims dismissed.  The court denied this motion, holding that a reasonable jury could find Urban Outfitters liable for hostile work environment and retaliation. Under the NYCHRL, an employer is liable for an unlawful discriminatory practice based upon the conduct of an employee or agent where: (1) the employee or agent exercised managerial or supervisory responsibility; (2) the employer knew of the employee’s or agent’s discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; or (3) the employer should have known of the employee’s or agent’s discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct. An employer’s obligation to prevent employee harassment is not satisfied by only taking “appropriate corrective action,” such as removing the customer from the store, but must also include “proactive steps” where appropriate.

Relying on Summa v. Hofstra University, where the Second Circuit ruled that a university was not liable for sexual harassment, Urban Outfitters argued that it was not liable for either incident of customer harassment because management did not “[permit] the harassment to continue past the point in time where it knew or should have known such harassment was taking place yet failed to act.” The court disagreed, distinguishing Summa on the grounds that, there, in addition to “promptly respond[ing] to the particular incidents of harassment,” the defendant took “proactive steps to create a better environment for all employees in the future.” In Swiderski, the court suggested that proactive steps could have included training employees and management on how to handle customers looking up the skirts and dresses of employees – as management knew that such incidents were occurring – as well as conducting investigations after the incidents occurred. Here, however, Urban Outfitters neglected to institute training for its employees on how to deal with such incidents, undertake any investigation, or issue a “trespass warning” regarding the offending customer.

Employers must take actions in order to create a safe work environment for their employees, whether that means taking preventative or proactive measures to stop sexual harassment. If your employer has discriminated against you based on your gender or sex, or has allowed sexual harassment in the workplace to continue without taking proactive measures, contact The Harman Firm, LLP.