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Recent NYS Division of Human Rights Decision Provides A Strategy to Defeat Certain Retaliation Claims

On October 2, 2024, the NYS Division of Human Rights (DHR) issued a determination in the matter of Kelsey v. Law Office of Ronald Benjamin. The complainant alleged sexual harassment and retaliation.  This determination reiterated two important principles of discrimination law.


First, although the complainant’s sexual harassment claims were deemed not credible, DHR noted that when the harasser is a high-ranking officer or owner of the business, the employer can be held strictly liable for their conduct.  It does not matter if the employee previously complained or if other management knew about the issue.


Second, the complainant was terminated soon after she filed the complaint at issue, thus leading to her retaliation claim.  While it certainly did not look good for the employer to terminate the employee so close to her engaging in protected activity (i.e. filing a complaint), DHR dismissed the claim because the issues leading to her termination began before she filed the complaint.  Specifically, prior to knowing about the protected activity, the employer received numerous complaints about the complainant’s behavior and conduct, and the complainant even admitted that she thought she would be terminated during the same month she filed her complaint.


It is not uncommon in situations like this for an employee already on thin ice to file a discrimination or retaliation complaint to try to insulate themselves from termination.  However, assuming the employer has thoroughly documented an employee’s misconduct, a termination should not be deemed retaliatory, even if done around the time a complaint is filed.  DHR has found similarly in other recent decisions (found here and here).


The moral of this story is to document, document, document.  As soon as an employee engages in misconduct or exhibits performance issues, the employer should immediately make a record of this and any attempts to help the employee succeed moving forward. This can be as simple as sending a short email to yourself noting the issue.  Such contemporaneous documentation will prove critical when defending a retaliation claim.


Employers need to tread carefully in these situations and ensure that proper documentation is in order, which is why experienced counsel can be helpful.  Please reach out to Dier Law any time if you need assistance navigating a situation where an employee who committed misconduct also filed a discrimination complaint.


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