Tuesday, July 5, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

It was also important to ascertain whether the employer could argue that the single incident of the language utilized by the claimant created a "hostile work environment" under New York and federal law. The most recent answer was found in SILBERFELD v. ABC CARPET CO., INC., 104508/08, 2010 NY Slip Op 30846(U) (Supreme Court of the State of New York, New York County - March 25, 2010) (emphasis supplied):

"To prevail on a hostile work environment claim under Executive
Law § 296 (1) (a), as under Title VII of the Civil Rights Act of
1964 (42 USC § 2000e et seq.) (Title VII), a plaintiff also
must demonstrate that the "workplace is permeated with
`discriminatory intimidation, ridicule, and insult,' that is
`sufficiently severe or pervasive to alter the conditions of . . .
[her or his] employment and create an abusive working environment'."
Harris, 510 US at 21, quoting Meritor Sav. Bank, FSB,
477 US at 65, 67. Generally, to be actionable, "[t]he incidents [of
harassment] must be repeated and continuous; isolated acts or
occasional episodes will not merit relief."
Kotcher v
Rosa & Sullivan Appliance Ctr., 957 F2d 59, 62 (2d Cir 1992);
see Clark County School Dist. v Breeden, 532 US 268 (2001);
Cruz v Coach Stores, Inc., 202 F3d 560, 570 (2d Cir
2000); Matter of Father Belle Community Ctr. v New York State
Div. of Human Rights, 221 AD2d 44, 51 (4th Dept 1996)."

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