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Peter Henner

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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.

Peter represented Grace Pruitt, a Lieutenant in the Utica Police Department, in her efforts to break through the blue glass ceiling.  She was ranked first on the civil service list for Captain and had commanded the Criminal Investigation Division for three years, when the City decided that CID should be commanded by a Captain.  Although Lieutenant Pruitt was the obvious chioice, the Police Chief appointed a man with less seniority and no experience  in CID to the position, and then asked Lieutanant Pruitt to train him to be her supervisor.  After she filed a discrimination complaint, she received a counseling memorandum and a reprimand; the first blemishes on her record after 17 years as a police officer.  In January 2010, Peter filed a federal lawsuit in the United States District Court for the Northern District of New York alleging violations of Title VII, the U.S. Constitution and international law. The case was settled in 2011.

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 state subsequently settled the case.

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 the former 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).

In the Spring of 2012, Peter was hired by the New York State Public Employees Federation, a statewide union  representing more than 50,000 New York state professional employees, to conduct an outside investigation of a complaint of sexual harassment made by a high-level union official against a member of the union. He interviewed approximately 20 individuals, reviewed the physical evidence, did a site visit and prepared a comprehensive report of his findings.  

© 2010 Law office of Peter Henner