As published in The Buffalo Law Journal July 11, 2002


The facts of the case presented below are noteworthy because they demonstrate that sexual harassment is about power and the abuse of power in the workplace. The employer’s prompt response afforded it the affirmative defense, allowing it to avoid liability. Perhaps the central message of this ruling has to do with risk management for the future.

The facts

The employee an 18-year-old restaurant delivery worker at the time was assigned to close the restaurant with his supervisor. His supervisor accused him of stealing and ordered him to spank himself with his own belt. The employee, out of fear, followed the supervisor to the men’s room where the supervisor watched the employee lower his pants, reveal his buttock and hip, and spank himself.

The employee lodged a complaint the next day. The employer immediately suspended the supervisor, who resigned prior to returning from suspension. The employee never worked with the supervisor after the incident.

What the court said

The court held in this case (Yerry v. Pizza Hut of Southeast Kansas, 2002 WL201758, N.D.N.Y. 2/6/02) that while the acts alleged could constitute intimidation sufficiently severe or pervasive to alter the working conditions, the employer nonetheless would avoid liability by properly availing itself of the Farragher/Ellerth affirmative defense, which requires that:

The court also noted that the employer did not take any adverse actions towards complaining employee, that the immediate suspension of the supervisor was sufficient corrective action, and that the supervisor’s resignation precluded the need for any preventive steps.

The court held that because the employer was not liable, the supervisor could not be liable as an aider or abettor.

Take-home message

Four questions come to mind based on this set of facts:

The good news is that the employee complained immediately, the employer responded swiftly and the employer avoided liability in this instance.

In order to retain good employees, this incident should be used as a tool for communicating the company’s policies and procedures. The ability to communicate with the workforce allows the seeds of prevention to blossom – affording the employer and the employees a healthy and safe working environment.

Lindy Korn is president of Diversity Training-Workplace Solutions, Inc. and is of counsel to Siegel Kelleher and Kahn, representing plaintiffs in discrimination claims.