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Defendant Uses Failure to Report Rape as a Defense


Two women were hired, one after the other, as data entry technicians for a company that manufactures, markets and directly ships children’s clothing and accessories. Both women were immigrants from Russia without relatives or connections in the United States. Both complained of sexual harassment, sexual assault and sexual abuse from a high-level manager of the children’s clothing company where they were employed.

The first data entry technician was initially hired in February 2005 on a temporary basis upon a referral from a technical employment agency. She was paid the rate of $15 hourly which was later raised to $20 hourly when she was hired on a permanent basis after two weeks. She worked at the children’s clothing company for only two months before she was forced to resign due to intolerable working conditions at the clothing company.

She claims that on her second day at the job, the manager ran his fingers through her hair. At another time, the manager asked her to stay late and when they were alone, he asked her personal questions as to whether she had a boyfriend and actually asked her to have sex with him.

From that time on, and almost daily the sexual harassment began. Once, her manager came up to her desk and told her that her nipples were hard and he volunteered to massage her breasts. She was so upset she threatened to resign but the manager told her to relax. The innuendos worstened to sexual invitations, later, the invitations escalated to actual fondling and the fondling were accompanied by threats. Because she continuously refused the manager’s sexual advances, the manager began calling her names such as “slut” and “bitch.” He then threatened to rape her and to destroy her. The data entry technician confided about the harassment to a co-employee and the co-employee told her that the manager did the same thing to her. Finding her work condition unbearable, she resigned from her employment. On her last day at the office, the manager asked her to come inside his office. As soon as she entered his office, he closed the door and took off his pants. He attempted to sexually assault her. The data entry technician resisted and cried out. She ran out of his office and the manager chased her until she got to the street. She filed a complaint for sexual harassment, gender discrimination and wrongful termination. This complaint was joined with the complaint of the second data entry technician.

The data entry technician who was hired in her place was also an immigrant from Russia. She was a single mother with children. She was also hired upon referral from the same technical employment agency. On her first day of work, her manager touched her and invited her to have sex with him. He invited her regularly for private office meetings where he kissed her and showed her pornographic pictures on his computer. Whenever the manager came near her at the office, the manager touched her arms, neck, breasts and nape. She confided with the same office mate that the first technician confided in and she also told the second data entry technician that he had done similar things to other employees.

The second data entry technician complained about the manager’s behavior to a supervisor at the technical employment agency and asked him to intercede. The supervisor of the employment agency spoke with the manager of the clothing company and this was when the manager began criticizing her work. He began asking her into his office and once she was inside, he would take off his pants and fondle his genitalia in front of her.

His sexual overtures became more aggressive as days wore on: he started grabbing the data entry technician and eventually on June 28, 2005, he raped her. He threatened her that if she reported the rape, she would lose her job. Two months later, the manager made her accompany him to the new office spaces that the company was thinking of renting. There, he raped her again. She found herself pregnant and had an abortion.

Three months later, the manager threatened to terminate her employment if she reported the rape. Ten days later, she contracted pneumonia and was unable to go to the office for a few days. She faxed a copy of a medical certificate issued to her by her doctor. Just the same, she was terminated. The clothing company claimed that her unexplained absence came at a time when the Christmas orders were to be shipped and her services were sorely needed.

She filed a case for wrongful termination against the clothing company. She also sued the company for gender discrimination, hostile work environment, sexual harassment, assault, battery and intentional linflicting of emotional distress.

The clothing company and the manager of the clothing company filed separate motions for summary judgment. The only issue before the Court is whether or not the motions for summary judgment should be granted.

The Court denied the motion for summary judgment filed by the manager. The manager interposed a defense of consensual sexual relations. He presented evidence of cell phone calls and text messages between him and the second data entry technician. The Court ruled that the motion for summary judgment is not the proper forum to pass upon the credibility of the testimony of the employee complaining of rape, assault and sexual harassment. The proper forum to determine the credibility of the claims of the second data technician is before a jury at trial.

The clothing company’s motion for summary judgment was granted in part. The Court ruled that the claims of sexual harassment were severe and persuasive that it created a hostile work environment. Just one instance of sexual harassment is enough to alter the conditions of employment from a favorable one to a hostile one.

However, the Court also pointed out that for the clothing company to be made liable for creating a hostile work environment, there must be evidence that the clothing company was aware that the sexual harassment was taking place and that it encourage, condoned or approved of it. There must also be evidence that the sexually harassed employee reported the sexual harassment to management but her complaints were ignored. Here, here was evidence that the manager was a top-level manager. That is to say, there was no one the data entry technicians could report to because the employee who was perpetrating the sexual harassment was already part of top-level management.

As to the part of the complaint of the two data entry technicians that claim discrimination from employment, the Court held that the data entry technicians must prove that they belong to the class protected by statute; that they were minimally qualified for the position they were hired; and that they were actively or constructively terminated from their position; that the circumstances of their termination show that they were discriminated against.

The Court held that as far as the first data-entry technician was concerned, she has succeeded in proving that her resignation from her employment was a direct result of the sexual harassment. But the second date-entry technician failed to prove that her termination from employment was for a cause other than absenteeism and poor work performance. Her complaint for termination due to gender discrimination is dismissed.

The clothing company also seeks the dismissal of the claims for damages due to the assault, battery and infliction of emotional distress. The clothing company claims that these acts, if ever they were truly committed by the manager were not committed by him in furtherance of the business of the clothing company. The acts of sexual harassment were outside the scope of his employment and were committed solely for personal reasons. These claims against the clothing company were dismissed by the Court.

The clothing company lasts asks that the Court dismiss that part of the complaint that claims damages for its negligent hiring and supervision of the manager. The data entry technicians claim that had the company better scrutinized the person of the manager before hiring him, he would not be placed in a position where he could commit acts of sexual harassment against his subordinates.

The Court ruled that in order for the data entry technicians to claim on this item against the clothing company, they must be able to prove that the clothing company knew before hiring the manager that he had a propensity for sexual harassment but that the clothing company still hired him despite this knowledge. The Court held that the manager provided proof that he has never been a defendant in a lawsuit for sexual harassment and so this item of the complaint against the clothing company was also dismissed.

The Court remanded the case for further proceedings and trial with regard to the claims against the manager personally and those claims against the clothing company which were not dismissed.

Your case may be similar to the case of the data entry technicians. One of the defenses raised by the manager here was that the data entry technician never reported the rape. A New York City Criminal Lawyer will advise you that it is in your best interest to report a rape. A New York Criminal attorney will also advise you that your claim for damages will be more credible if you had reported the rape and the rape was prosecuted and the rapist was convicted. Call or visit any of the offices in the New York are of Stephen Bilkis and Associates, whether you have been involved in sex crimes, drug possession or theft. Their NY Criminal lawyers on staff are willing to represent you so that you can be compensated for the injury against your person and your gender. Call Stephen Bilkis and Associates today.

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