Skip to main content


Employer’s Opposition To Unemployment Benefits And “Frivolous” Counterclaims In Sexual Harassment Case May Constitute Unlawful Retaliation

Plaintiff claimed that her employer repeatedly made sexually explicit, graphic, derogatory, and profane comments; allegedly groped her; and threatened that she must not “ever try to take me down” or he would kill her. Plaintiff’s husband notified the employer that plaintiff had been hospitalized, was being treated by a psychiatrist, and was taking medication to treat her condition.  Plaintiff was then terminated for poor job performance.  Plaintiff’s lawyer subsequently sent a letter to the employer summarizing her sexual harassment claims. The employer thereafter challenged plaintiff’s claim for unemployment benefits, allegedly in retaliation for plaintiff’s anticipated lawsuit. Plaintiff did indeed sue, alleging a series of unlawful acts, including gender and disability discrimination and retaliation in violation of the New York City Human Rights Law (“NYCHRL”) and the New York State Human Rights Law (“NYSHRL”). The employer filed an answer and counterclaims in response to plaintiff’s complaint.


A federal trial court in Manhattan ruled in Wermann v. Excel Dentistry PC, 2014 WL 846723 (S.D.N.Y. 2014), that plaintiff had sufficiently alleged retaliation under both the NYCHRL and the NYSHRL for the case to go to a jury. Noting that “challenging unemployment benefits in retaliation for filing discrimination claims may violate the NYSHRL and NYCHRL,” the court stated that “Plaintiff sufficiently pleaded that Defendants opposed her unemployment benefits application in retaliation to her threat to file a gender and disability discrimination lawsuit.”


The court also found that the employers’ counterclaims could constitute retaliation. The counterclaims alleged that plaintiff “secured her employment through fraud, submitted fraudulent insurance claims and converted those payments, misappropriated … funds, and intentionally inflicted emotional distress on … [the employer’s president].”  The court found that plaintiff had alleged sufficient facts to support an inference that these counterclaims were baseless and that they could harm her reputation and negatively affect her employment prospects.  Thus, the court held, the retaliation claim should be submitted to a jury to determine.