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The American Stock Exchange does not have immunity from a suit for sexual harassment and discrimination allegedly committed by one trader against another, a New York state judge has ruled in an action brought by the first black female broker to trade on the exchange’s floor. Justice James P. Dollard rejected all of Amex’s and the defendant broker’s pretrial motions to dismiss broker Dawn Bantum’s claims, which are based on state and New York City Human Rights Laws. The suit claims that beginning in March 2000, broker Lawrence Polatchek of Heights Partners Inc. began making sexual advances and then crude sexual remarks when Bantum, who worked for a competitor, L.L. Partners, rejected his advances. When she complained to exchange officials, Bantum alleged that they aided and abetted Polatchek’s harassment by dragging out its investigation and failing to punish his behavior. Justice Dollard rejected Amex’s argument that the suit should be dismissed because the state and city human rights laws apply only to discrimination in places of public accommodation, and not to a trading floor, which is “distinctly private,” with access limited to member firms and their employees. Writing in an April 3 ruling in Bantum v. American Stock Exchange LLC., 23099/2002, the Queens County Supreme Court judge noted that the Appellate Division, First Department, had held the trading floor of the COMEX commodities exchange to be a place of public accommodation in a 1997 ruling. He also cited an Appellate Division, Second Department, decision from last October that “implicitly” determined that the New York Stock Exchange was a place of public accommodation. The defendants failed to show that Amex was not a place of public accommodation for purposes of the human rights laws, the judge said, and furthermore, Polatchek and Heights Partners were properly characterized as member-owners or member-lessees of the exchange. Justice Dollard also upheld Bantum’s hostile work environment and retaliation claims. He noted her complaint was not based on employee/employee relationship provisions of New York’s Executive Law or a federal Title VII claim, but rather the sections of the human rights laws barring discriminatory conduct or retaliation by “any person.” “Bantum’s complaint is sufficiently detailed to state a claim that she was required to endure an environment which was severely and pervasively hostile and, upon filing her complaint with Amex, was retaliated against by Polatchek and Heights, as well as by other brokers/members,” the judge said. “Similarly, the complaint is sufficiently detailed to state a claim that Amex … had knowledge of, acquiesced in or subsequently condoned the discriminatory conduct of Polatchek and Heights by failing to follow through with her complaint in a timely fashion, and in failing to timely impose any sanction as to encourage and condone further discrimination and retaliation by other brokers/members,” he added. The judge also declined to accept Amex’s argument that when conducting disciplinary actions as a self-regulating organization, the exchange and its employees are entitled to immunity from suit. “Amex [and its officials] have failed to proffer any evidence that their investigation of a claim of sexual discrimination and harassment falls within the scope of quasi-governmental powers delegated to Amex pursuant to the Securities and Exchange Act,” he ruled. CROSS CLAIM In considering Amex’s cross-claim against Polatchek and Heights Partners for contribution, Justice Dollard acknowledged there is no statutory or common law right to contribution under the federal Title VII statute, but he said he agreed with U.S. District Judge Arthur D. Spatt in the Eastern District of New York, who ruled in a 1999 decision that a cross-claim for contribution could be made in a discrimination claim under New York’s Human Rights Laws. Bantum was represented by Anthony Carabba of Carabba Locke. Peter A. Walker of Seyfarth Shaw led the defense team for Amex. Gerald A. Rosenberg of Katten Muchin Zavis Rosenman appeared for Polatchek and Heights Partners.

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