By-Stander Sexual Harassment Recognized

Originally appeared in Labor and Employment Newsletter - February 2002

Recently, in Leibowitz v. New York City Transit Authority, 252 F.3d 179 (2d Cir. 2001), the Court of Appeals for the Second Circuit addressed whether an employee may sue her employer for a hostile work environment created by the sexual harassment of the employee's co-workers by a fellow supervisor. The court held that the employee did have standing to sue, despite the fact that the injury alleged was only an indirect result of the harassment of others. However, the court held in favor of the Transit Authority in finding that the plaintiff - who was not the target of the alleged harassment, was not present when the harassment allegedly occurred and was not aware of the harassment - failed to prove that an environment existed at work that was hostile to her because of her sex.

Member of Protected Class

The unique issue before the court was whether Leibowitz had standing to bring a claim for sexual harassment despite the fact that she was never the target of the alleged harassment and was not aware of the harassment at the time that the acts were committed. The court held that, although the harm complained of by Leibowitz might have been only an indirect result of the harassment of other women, that fact does not, in itself, preclude her from bringing suit. The court found that Leibowitz was a member of the protected class and her case was based on whether she suffered psychological harm because her own work environment became hostile through discrimination against other women.

Hostile Work Environment Not Established

While Leibowitz had standing to maintain the action, her...