The opinion of the court was delivered by: ROBERT L. CARTER
Defendants Eastman Kodak Company ("Kodak"), Yourdon, Inc. ("Yourdon"), Thomas A. Walker, John Kucik and Michael French have moved for an order precluding the quid pro quo discrimination claims of plaintiffs Susan Q. Bridges, Virginia D'Aponte and Kimberly Muryasz. The motion is denied.
Plaintiffs brought a claim against Defendants Kodak, Yourdon, Walker, Kucik, French, Kevin Cash, Mary Heaphy and David Offenhartz under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the New York Human Rights Law, 18 McKinney's N.Y. Executive Law, § 296(1)(a) (1982), alleging quid pro quo sexual harassment. Bridges v. Eastman Kodak Co., 822 F. Supp. 1020 (S.D.N.Y. 1993) (Carter, J.). In particular, the complaint alleged that plaintiffs' supervisor, Cash, subjected plaintiffs to unwelcome "foul language, sexual innuendo, [and] unfair and unequal employment treatment of plaintiffs with respect to their terms and conditions of employment." (Verified Complaint ("Complaint"), P 30). Plaintiffs also claimed that Cash, among other things, referred to them and other women as "bitches," made remarks about what he wanted to do sexually to women at work, "attacked women verbally, raised his fists, screamed in their faces," and criticized plaintiffs' work and behavior in terms of their sexuality. Id. In addition, the complaint claims that Cash "threatened the plaintiffs and other women with termination, discipline, or economic loss if they were to complain to upper management," "threatened to have them disciplined or fired," "forced the Plaintiff Muryasz to submit to unwarranted abuse as a condition of training and continued employment," and "advised . . . [plaintiffs] that they would be 'out of here' if they complained." Id.
Based on these allegations, the court held in a decision with which familiarity is assumed that plaintiffs could maintain an action for quid pro quo sexual harassment, basing its decision on five factors which are required to state a quid pro quo discrimination claim under Title VII and the Human Rights Law:
(1) the employee is a member of a protected group; (2) the employee was subject to unwelcome sexual harassment; (3) the harassment complained of was based upon sex; (4) the employee's reaction to harassment complained of affected tangible aspects of the employee's compensation, terms, conditions, or privileges of employment; and (5) respondeat superior. Henson v. Dundee, 682 F.2d 897, 909 (11th Cir. 1982); Ottaviani v. State University of New York, 679 F. Supp. 288, 335 (S.D.N.Y. 1988) (Kram, J.) (adopting Henson test), aff'd, 875 F.2d 365 (2d Cir. 1989), cert. den., 493 U.S. 1021, 107 L. Ed. 2d 740, 110 S. Ct. 721 (1990); McLaughlin v. State of New York Governor's Office of Employee Relations, 739 F. Supp. 97, 105 (N.D.N.Y. 1990) (adopting Henson test).
Bridges, 822 F. Supp. at 1027-28.
Defendants have asked the court to revisit the issue of the sufficiency of plaintiffs' quid pro quo claim in light of the Second Circuit's recent interpretation of that issue in Karibian v. Columbia University, 14 F.3d 773 (2d Cir.), cert. denied, 129 L. Ed. 2d 824, 114 S. Ct. 2693 (1994). There it stated that
the relevant inquiry in a quid pro quo case is whether the supervisor has linked tangible job benefits to the acceptance or rejection of sexual advances. It is enough to show that the supervisor used the employee's acceptance or rejection of his advances as the basis for a decision affecting the compensation, terms, conditions or privileges or the employee's job.
Id. at 778. Defendants wrongfully hone in on the term "sexual advances," concluding that the court intended to limit a quid pro quo harassment claim to only those cases where an employer makes explicit sexual overtures towards a plaintiff. This narrow interpretation is unwarranted for a number of reasons.
First, while the supervisor in Karibian made overtures to the plaintiff for a sexual relationship, id. at 776, the Second Circuit does not narrow its interpretation of quid pro quo discrimination to this type of sexual harassment. The court's decision focuses not on the supervisor's behavior, but on whether toleration of that behavior was linked to some threatened or actual economic loss. The issue in Karibian was whether the plaintiff's employment terms and conditions were based upon her "submission to his sexual advances." Id. at 778.
Second, the Circuit court relies on the Guidelines promulgated by the Equal Employment Opportunity Commission ("EEOC") in formulating its quid pro quo sexual harassment definition. The EEOC defines sexual harassment as:
unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . [when the following conditions are present]: (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably ...