Federal Court In NY Affirms Worker’s Right To Seek Back Pay In Sexual Harassment Suit

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

FEDERAL COURT IN NY AFFIRMS WORKER’S RIGHT TO SEEK BACK PAY IN SEXUAL HARASSMENT SUIT
Immigrants' Rights Update, Vol. 18, No. 5, August 9, 2004

In a decision that highlights the importance of not disclosing the immigration status of a plaintiff in an employment or labor dispute proceeding, a federal court found that Hoffman Plastic Compounds v. NLRB, 122 S. Ct. 1275 (2002), does not foreclose a back pay award in a sexual harassment suit brought under federal, state, and New York City laws. The court made its finding because there was insufficient evidence in the record for the court to determine whether Hoffman applied in the case. (For a summary of the Hoffman decision, see “Supreme Court Bars Undocumented Worker from Receiving Back Pay Remedy for Unlawful Firing,” IRU, Apr. 12, 2002, p. 10.)

In Molina v. J.F.K. Tailor Corp. and Koo Kim, a garment worker, Jenny Molina, alleged that she was sexually harassed by Koo Kim, her supervisor and a principal shareholder of J.F.K. Tailor Corporation. Importantly, she identified herself in the complaint only as a “Hispanic female.” Molina started working for J.F.K. in 1995 as a seamstress. She alleged that Kim began to harass her sexually in 1997, initially by making comments that were sexual in nature, touching her inappropriately, and urging her to accompany him to his office to have sexual relations with him. Molina alleged that after she was relocated to a sewing machine closer to Kim’s office, the sexual harassment became worse. Molina eventually submitted to Kim’s sexual demands, engaging in sexual intercourse and other sexual contact with him on a regular basis for three years.

Molina warned Kim directly in 1999 that if his conduct continued, she would report him to a government agency. Kim responded by telling her to look for another job. In August of 2000, Kim told Molina that another manager at J.F.K. with whom he had argued had threatened to reveal Kim’s sexual relations with Molina to Kim’s wife. A week later, Molina was summoned to Kim’s office, where Kim and his wife were present. Kim’s wife confronted Molina, who denied that she had been having sexual relations with Kim. Molina was discharged that same day. In September of 2000, Molina filed a timely discrimination charge with the Equal Employment Opportunity Commission (EEOC) against Kim and J.F.K. The EEOC issued a right-to-sue letter, and in May of 2001 Molina filed a sexual harassment discrimination charge in federal district court.

The magistrate judge in Molina’s case was directed by the district court judge to recommend the amount of damages Molina should recover given the defendants’ failure to answer or otherwise respond to the complaint. In response to the court’s order, Molina submitted a declaration in support of her claim for damages. After the defendants did not respond to the court’s order for submissions, the magistrate recommended award amounts for back pay, front pay, and compensatory and punitive damages for Molina.

Although neither party raised the Hoffman decision as an issue, the magistrate in his opinion addressed whether Hoffman precluded Molina from seeking back pay. Citing, among other cases, Lopez v. Superflex, Ltd., 2002 U.S. Dist. LEXIS 15538 (S.D.N.Y. Aug. 21, 2002) (discussed in “Employee Can Make ADA Claim without Pleading Work Authorization, but Action Could Lead to Adverse Inference about Immigration Status,” Immigrants’ Rights Update, Oct. 21, 2002, p. 12), the judge found that “because plaintiff’s immigration status is not clearly identified in the record in this case . . . the applicability of Hoffman Plastic cannot be determined with certainty [and thus] the Court finds that plaintiff has a viable claim for an award of back pay.”

Molina v. J.F.K. Tailor Corp. and Koo Kim, 2004 U.S. Dist. LEXIS 7872 (S.D.N.Y. Apr. 30, 2004).