(CN) - Two construction workers whose boss had sex in their motel room during an out-of-town project cannot collect damages for sexual harassment, a New York appeals court ruled.
While working out of town for GPA Development Corp., Doug Andross repeatedly brought a local woman to the motel room he shared with two men on his crew.
Adam Bargy and Orlando Colon complained that Andross, who was their immediate supervisor, had sex with the woman while they were present.
On one occasion, the woman brought some female friends to the room, which the men said made them concerned for the security of their belongings.
After the men got into a disagreement with the woman, Andross fired them.
Bargy and Colon complained to the State Division of Human Rights about unlawful discriminatory practices. An administrative law judge (ALJ) awarded $11,160 to Bargy and $18,568 to Colon for back pay and mental distress.
Commissioner of Human Rights Galen Kirkland adopted the judge's findings and also named GPA president Graig Arcuri personally liable for the damages.
The Albany-based Third Department New York Appellate Division agreed earlier this month, however, to annul that finding based on the fact that Bargy and Colon never established that their treatment was related to their gender.
"Of the recognized paths for showing same-sex discrimination, the only one even arguably applicable is harassment based on gender stereotyping," Justice John A. Lahtinen wrote for a four-person panel. "However, the ALJ made no such finding. The only apparent evidence in the record reflective of possible gender-stereotyping is Andross' stray remark to one complainant to 'stop being a wuss and put up with it ... you a man.'"
"We fully agree that Andross' conduct was crude, coarse and grossly unprofessional; nevertheless, in the absence of gender-based discrimination, such conduct does not establish a claim," Lahtinen added.
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