State Division of Human Rights v. Dom's Wholesale & Retail Center, Inc.

Application pursuant to Executive Law § 298 to enforce petitioner’s order, dated June 3, 1999, as revised by its order dated August 26, 2003, finding that the complainant suffered mental anguish and humiliation as a result of a hostile work environment caused and allowed to exist by respondents, and awarding the complainant $20,000 (transferred to this Court by order of Supreme Court, New York County [Harold B. Beeler, J.], entered January 28, 2004), unanimously granted, without costs.

The record, based on the complainant’s unrefuted allegations, evinces sufficient evidence of a hostile work environment created by same-sex harassment (see Oncale v Sundowner Offshore Services, Inc., 523 US 75 [1998]), amounting to constructive termination of employment (Matter of State Div. of Human Rights v ARC XVI Inwood, Inc., 17 AD3d 239 [2005]). The matter is distinguishable from Yukoweic v International Bus. Machs. (228 AD2d 775 [1996], lv denied 88 NY2d 816 [1996]) in that here the purportedly crude humor or horseplay targeted the complainant and was gender-specific. The complainant was a member of a protected class, a hostile work environment was created by respondent coworker’s harassment, and respondent owner failed, upon notification, to take corrective action, and indeed acquiesced in the offending conduct (see Matter of State Div. of Human Rights v St. Elizabeth’s Hosp., 66 NY2d 684 [1985]). Concur—Saxe, J.P., Marlow, Sullivan, Williams and Gonzalez, JJ.