Law Office of Peter Henner

Law Office of
Peter Henner

(518) 768-8232

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Peter Henner

SEXUAL HARASSMENT

In the last twenty years, there has been a growing consensus that "sexual harassment" in the workplace should not be tolerated. Sexual harassment can take the form of: 1) "quid pro quo" sexual harassment, i.e. threats or promises made in exchange for the granting or withholding of sexual favors, 2) creating a hostile work environment based on gender by such conduct as unwanted touching or even physical assault, verbal assaults, sexually demeaning language, or pornography, or 3) gender-based hostility, where a supervisor expresses hostility towards one gender. Although it is generally agreed that sexual harassment should not be tolerated in the workplace, the question of what particular conduct constitutes sexual harassment, as opposed to conduct that is simply obnoxious, must be resolved on a case-by-case basis. Although sexual harassment is illegal, the Supreme Court has noted that Title VII of the 1964 Civil Rights Act, which prohibits discrimination on the basis of sex should not become "a general civility code for the American workplace".

Peter, as a labor lawyer whose practice is dedicated to representing individual union and individual employees, has played an active role in the development of sexual harassment law. More than 25 years ago, as the in-house general counsel for AFSCME Council 82, he was the first attorney to successfully defend a New York State employee accused of sexual harassment in a case where the state sought the termination of the employee. Today, as a lawyer in private practice, he represents employees, usually women, who have been victims of sexual harassment in the workplace, and supervisors and co-workers, usually men, who have been wrongfully accused of such harassment.

From 1997 through 2003, Peter represented an employee of the New York State Department of Labor, in a long-standing battle to remedy gender-based discrimination and gender-based hostility by a supervisor. After the State's motion for summary judgment was denied (Finn-Verburg v. New York State Department of Labor, 122 F.Supp 2d 329, (N.D.N.Y. 2000)), a jury found that her supervisor had created a hostile work environment, but that it had not been based on gender.

The court granted a new trial, because the only evidence submitted to the jury regarding the hostile work environment showed hostility towards women (165 F.Supp.2d 223 (N.D.N.Y. 2001)). This decision is important in the continuing efforts of the plaintiff’s bar to fight against the so-called "equal opportunity harasser" defense. The motion was subsequently settled.

Peter was the appellate attorney in Fitzgerald v. Henderson, 251 F.3d 345, (2d Cir. 2001), cert.den., Potter v. Fitzgerald, 122 S.Ct. 2586 (2002). In this case, the Second Circuit overturned a grant of summary judgment in favor of the United States Postal Service. The lower court had held that a mail carrier's claims were barred by the statute of limitations; however, in an important legal precedent, the appellate court found that the "continuing violation" doctrine applied and that the mail carrier should be allowed to assert a claim for damages based upon her supervisor's harassment for two years prior to the final incident of harassment. The Postal Service appeal to the United States Supreme Court was unsuccessful.

In 2005, Peter represented Ed Drago, the Director of Apprenticeship Training for the New York State Department of Labor, with respect to allegations of sexual harassment, and was successful in winning an affirmance of the dismissal of the allegations against him, Strauss v. New York State Department of Education, 26 A.D.3d 67 (3d Dept. 2005).