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Plaintiff’s Claim for Hostile Work Environment Survives Summary Judgment

Many times in the workplace, there is a fine line for conduct that is unfair versus conduct that is unlawful. Creating a hostile work environment is prohibited under a number of Federal discrimination laws such as Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967 and Americans Disabilities Act of 1990. Most states and municipalities also have equivalent laws which may provide for even better protection from a hostile work environment, such as New York which has the New York State and New York City Human Rights Law that govern these types of claims and provide even greater protection for employees.

In 2013, a U.S. Court of Appeals case for the Second Circuit clarified the standards for gender discrimination claims based on an allegation of a hostile work environment in Desardouin v. City of Rochester, 708 F.3d 102 (2d Cir. Feb. 19, 2013). This is an important decision because it held that one specific comment repeated over a short period of time warranted a trial for a sexual harassment claim. Thus, the case grants employees significant protection as it emphasizes that in certain situations, particularly when sexual comments are continuous and repeated, the line between what is unfair crosses into being unlawful.

In Desardouin v. City of Rochester, Plaintiff was the only female supervisor in her department of the Rochester Police Department. Her male supervisor made weekly comments to her for two, perhaps three months, stating that her husband was “not taking care of [her] in bed.” The District Court held that such comments for over such a short period of time were not severe or pervasive enough to submit to a jury under Title VII and Section 1983, but the Second Circuit reversed, clarifying the “severe or pervasive test” as follows:

A hostile work environment claim requires a plaintiff to show that a workplace is “so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered.” Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002) (citations omitted). The plaintiff must also show “either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal quotation marks omitted). If a plaintiff relies on a series of incidents, they must be “more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (internal quotation marks omitted). In determining whether the threshold has been met, relevant factors include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The plaintiff must also subjectively perceive the environment to be abusive. Id. at 22-23.

The court held that her supervisor’s comments were not an “obvious” case of hostile work environment, but found them sufficient to warrant a trial. Even though the comments were not necessarily threatening, the frequency of them –having heard them weekly– were considered more than merely offensive, as a reasonable female hearing such frequent statements from her male supervisor would have perceived them to be continuous, insulting sexual advances. Such allegations of repeated solicitation of sexual relations in a vulgar and humiliating manner were deemed sufficient to warrant a trial under the standards set forth in Harris.

For more detailed information regarding federal and state law prohibiting sexual harassment, visit our website. Attorneys focusing in such matters can protect your interests and your reputation. If you would like to get a professional consultation with one of our attorneys do not hesitate to contact Borrell & Associates, P.L.L.C immediately.


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