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All in the Family? Not When it Comes to Sexual Harassment

The female employee claimed that her cousin-boss was harassing her, engaging in numerous discussions of a sexually provocative nature – including discussing his sex life and inquiring about hers – over the course of two to three years. The woman contended that she never initiated or encouraged such discussions and conduct, but merely responded to her cousin's behavior because she feared for her job. She preferred at the time to think she could be helpful to her cousin by persuading him to seek professional counseling for his problems. She contends that on some occasions she asked her boss to stop the "stuff" he was doing, and he would stop for a time, but then he would begin his misconduct again and again.

An employer could be slapped with a harassment lawsuit by someone "in the family."
The male cousin's inappropriate inquiries of a sexual nature to his female cousin were often about sexual positions, making complimentary remarks to her about her perfume, how she looked, how small her waist was, how she turned him on, and even asking his cousin to have sex with him. The female employee claimed that these statements were made by her boss frequently- no less than five times each. At one point, she claimed that the boss allegedly told her that he thought about having sex with her and fantasized about her while he showered. He was so bold as to initiate discussions with her about the frequency of her own sexual relations with her husband, who also worked for the company.

The behavior and infatuation escalated to a point when the two were planning a business-related trip and the owner-cousin offered the employee $3,400 in cash, a negligee, and a diamond necklace if she would have sex with him during the trip. He also offered her an additional $1,000 if she would leave at home her son, whom she was planning on taking with her on the trip. The trip never took place, but several months later the boss told the woman that he had decided to lay off or reassign her husband —an action that the woman viewed as an attempt to give her boss more opportunities to be with her. Soon afterwards, she secretly taped a conversation in which her boss admitted to propositioning her.

The woman and her husband resigned and filed suit against their cousin-boss and the company, claiming sexual harassment, constructive discharge and intentional infliction of emotional distress.

The Court ruled that the cousin-boss' conduct was sufficiently severe and pervasive to meet the baseline requirements of a hostile work environment claim. In reaching its decision, the Court pointed to the persistent sexually provocative discussions initiated by the boss with the woman, his alleged exhibitionism, self-described sexual acts, and outright attempts to achieve sexual encounters with the woman at virtually any cost.

This case illustrates an important point for all employers, and especially those in family-run businesses, which are prevalent in the food industry. Conversations with any employee, even a relative or family friend, that is too intimate, of a sexual nature so as to make the employee uncomfortable, or completely inappropriate requests related to sex, can still be subject to strict scrutiny by the courts. While the cousin-boss' behavior in the case discussed here was egregious and went far beyond acceptable behavior, any permutations of such behavior that may be mistaken for casual banter, could still lead to liability for sexual harassment.

Accordingly, employers should ensure that they have proper sexual harassment and anti-discrimination policies in place and posted for all employees to view; that their employees are familiar with such policies; that their managers (including the owner or operator) are well-trained and educated on harassment and discrimination; and that the employer has an effective internal complaint procedure in place. Otherwise, the employer could be slapped with a harassment lawsuit by someone "in the family."

  • Krupin O'Brien LLC is a nationally recognized law firm specializing in employment and labor law and exclusively representing employers in the areas of labor relations, employment law, business immigration and related litigation. The firm has a particular expertise in representing restaurants and the hospitality industry, and represents companies and ownership groups of all sizes, both local and nationally. For further information contact Ana Salper, an attorney with Krupin O'Brien LLC, where she represents clients on all forms of litigation, and counsels clients on diverse employment and labor matters. Ms. Salper oversees the firm's New York office and is a member of the New York State Bar. Contact her at: 212-745-1387 or ana@krupinobrien.com.

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