Clothing Retailer Must Stand Trial for Firing Bra-Less Boss

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By Kevin McGowan

A female regional manager for Anne Fontaine USA Inc. fired after complaining subordinate employees were spreading “rumors” she let a top male executive see her breasts may pursue retaliation claims, a federal district court in New York ruled ( Baez v. Anne Fontaine USA, Inc. , 2017 BL 2438, S.D.N.Y., No. 14-6621, 1/5/17 ).

Rochelly Baez’s chances of success on her claims against the clothing retailer might be slim, Judge Katherine B. Forrest said Jan. 5.

Baez didn’t dispute that when meeting with Chief Executive Officer Ari Zlotkin, she didn’t wear a bra. She denied, however, that she showed Zlotkin her breasts. The company issued a written warning to one female employee who gossiped about the incident.

But a jury trial is warranted on Baez’s claims that Anne Fontaine violated federal, state and city anti-discrimination laws by subsequently firing her for causing too much workplace “drama.”

Attorneys representing the parties weren’t available for comment Jan. 6.

‘Drama’ May Include Protected Conduct

The short time period between Baez’s complaints about her co-workers’ gossip and her termination could allow a reasonable jury to find she was fired for opposing suspected sexual harassment, the court said.

“Baez’s claims are not strong; and it is clear” that her “action is not the type with which the relevant discrimination statutes are most concerned,” Forrest wrote. “Nevertheless, the court cannot say that such facts do not support a very weak claim of discrimination.”

Baez filed her retaliation claims under Title VII of the 1964 Civil Rights Act, the New York State Human Rights Law and the New York City Human Rights Law.

Zlotkin and Cindy D’Luzansky, another top executive, when firing Baez, cited Baez’s alleged mismanagement of a subordinate employee and her flawed rollout of a New York City store.

Zlotkin also said Baez caused “too much drama” at work.

A jury could reasonably infer the CEO was referring to the tumult over Baez’s complaints about her co-workers’ speculation that Zlotkin had seen her breasts, the court said.

A jury could reasonably find Baez wouldn’t have been fired “but for” complaining about what could be considered a sexually hostile work environment, the court said.

City Law Is Worker-Friendly

Baez also may pursue a hostile work environment claim under the New York City law, which is more worker-friendly than Title VII or state law.

Under the city law, a worker proves a hostile work environment by showing “unequal treatment based on gender.” A showing the alleged harassment was “severe” or “pervasive”—the Title VII standard—isn’t needed to hold an employer liable under city law.

Baez alleged she experienced a hostile work environment because her co-workers spread the rumors about her breasts and D’Luzansky didn’t adequately investigate or discipline the co-workers for their harassment.

These “sorts of issue” aren’t “within the heartland” of what federal, state and city anti-bias laws “are meant to address,” the court said.

But under the city law’s lenient standards, Baez’s allegations are sufficient to send the hostile environment issue to a jury, the court said.

The Law Offices of Lauren Goldberg represented Baez. Martin Clearwater & Bell represented Anne Fontaine USA.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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