Consensual Sexual Relationship Not Sexual Harassment

Barbara Bracci was a corrections officer employed by the New York Department of Correctional Services. Bracci filed a sexual harassment complaint under New York’s Human Rights Law. The essence of Bracci’s complaint was generally known as “quid pro quo sexual harassment” – where an employee is subjected to unwelcome sexual conduct and the reaction to the conduct was then used as a basis for decisions affecting compensation or other terms and conditions of employment.

When an administrative law judge ruled against Bracci, she challenged the decision in the Appellate Division of the New York Supreme Court.

The Court upheld the dismissal of Bracci’s complaint. The Court found critical the fact that Bracci’s relationship with her captain was consensual. Reciting the evidence, the Court noted that “while the captain conceded that he had had a sexual relationship with Bracci, he testified that Bracci initiated the relationship and that it was consensual. Bracci’s own testimony as to whether she consented to the relationship was inconsistent. Contradiction in the testimony presents assessments of credibility to be resolved by the Division of Human Rights. The ALJ’s factual conclusion that Bracci’s relationship with the captain was consensual is fatal to her claim of quid pro quo sexual harassment.”

Bracci v. New York State Division of Human Rights, 878 N.Y.S.2d 830 (App. Div. 2009).

This article appears in the August 2009 issue