Urban Outfitters could face a jury trial on claims by a former sales associate that the company did little to cure or prevent known harassment by customers and subsequently employees at a store in New York.
In a Monday order, U.S. District Judge J. Paul Oetken refused Urban’s push for dismissal of claims by Tatiana Swiderski that she was subjected to severe harassment by customers at least twice at the Urban Outfitters store she worked at on 5th Avenue and the company did little to remedy either situation or prevent future occurrences. Urban has disputed this, saying essentially that it did all that was required under the law.
Oetken disagreed, saying Urban did not account for the “the entire scope of an employer’s duty to take appropriate corrective action” under New York state law and legal precedent for the Second Circuit.
“Once it has notice that its employees are being harassed, an employer’s remedial obligation is not necessarily satisfied by ejecting the offending customer from the store….There is no evidence here that defendant took any ‘proactive steps’ to prevent future harassment nor instituted any training for its employees on how to deal with such incidents,” Oetken wrote. “Moreover, there is no indication that Defendant undertook any investigation about either incident or issued a ‘trespass warning’ regarding either offending customer, despite the fact that plaintiff complained to several management employees about both incidents. Furthermore, Defendant concedes that it did not have any specific written policy concerning the handling of customer harassment incidents, as it apparently believed that ‘such a specific policy is not needed.’”
Swiderski filed her suit in 2014, claiming the year prior she caught a man in the store looking and taking photos on his cell phone up her skirt as she walked up an open flight of stairs, something unidentified customers were apparently known to have done on several previous occasions. The second incident happened later in 2013, when Swiderski was showing a man to the men’s department of the store, and he allegedly grabbed her face and forced his thumbs in her mouth, saying he wanted to “see her teeth” before licking her face. He also allegedly grabbed the front of her dress and tried to grab her chest as Swiderski pulled away.
In both instances, Urban said the offending patrons were apprehended and removed from the store, and in the case of the upskirt photos, the images were deleted from the man’s phone, but the police were not called and apparently no preventative measures were enacted. Eventually, Swiderski filed a police report against the upskirt photographer, but she said she had to complain and repeatedly ask Urban’s loss prevention agent at the store, for the man’s information before doing so. A report over the second incident was never filed.
While Swiderski complained about both incidents with Urban staff and the store manager. He allegedly told her “You’re a girl in New York…things happen; it’s your responsibility to watch out for yourself.” Urban has disputed this allegation. But in an e-mail about the incident, the store manager admitted that Swiderski had been pushing to file a police report and was “not sure what to do in this situation.”
After this incident, the loss prevention agent, allegedly urged Swiderski to drop her complaint about the first incident, because he had been warned by Urban over his handling of it. He allegedly approached her one time “more aggressively,” forcing her back up against a cash register and “whispering through his teeth” for her to “drop things.”
Swiderski subsequently complained of this treatment, but it seems nothing came of it and she was allegedly subjected to more invasive security pat downs, that involved expressly prohibited touching of her sides, hips and waist.
Urban also disputed this claim, saying Swiderski’s encounters with the loss prevention agent were “isolated incidents of little to no consequence,” but the judge disagreed and said they likely contributed to a hostile environment.
After the incidents and her complaints, Swiderski says Urban retaliated against her by requiring her to work in the stockroom instead of on the sales floor. While Oetken agreed that this move could constitute retaliation, he sided with Urban and dismissed Swiderski’s allegation that being moved to such a position essentially forced her to quit.
Oetken also dismissed one element of her harassment claims, agreeing that under New York State Human Rights Law, the customers’ harassment could not be imputed to Urban as a company.
Her remaining claims of employee harassment, hostile work environment and retaliation were upheld against Urban. Although cases often settle under these circumstances, the case is now slated for trial sometime next year.
Representatives of Urban and Swiderski could not be reached for comment.
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