In Hernandez v. Kaisman, 2012 NY Slip Op 09191 [103 AD3d 106], the Appellate Division, First Department recently clarified that hostile work environment claims brought under the New York City Human Rights Law (NYCHRL) must be analyzed separately from, and more broadly than, similar claims brought under state and federal law.
In this case the motion court granted summary judgment dismissing plaintiffs’ State and City Human Rights Law claims. The appellate court modified that order to reinstate plaintiffs’ NYCHRL claims.
The Alleged Harassment
Plaintiff contended that defendants engaged in sexual harassment over a roughly two-month period by sending allegedly lewd emails and making offensive and suggestive comments. For example, plaintiffs alleged that defendant:
- Sent an email containing an audio clip of a lecture on the word “fuck”,
- Sent an email showing blindfolded participants tricked into feeling the naked buttocks of a man,
- Sent an email containing a video of a snow sculpture of a penis “ejaculating” snow balls,
- Sent an email containing a video of a clip from the movie showing a girl masturbating with a vibrator,
- Sent an email entitled “The Perfect Woman” and attaching an image of a headless female body with two pairs of legs,
- told plaintiff that she should get breast implants and offered to take her to a doctor who could perform the procedure,
- pointed out to plaintiff that her underwear was exposed but told her that she should not have adjusted her pants because he had been “enjoying” himself,
- placed whipped cream on the side of his mouth and asked plaintiff if “this looked familiar”,
- referred to himself as a “pimp”,
- told a plaintiff that she needed to lose weight
- once touched a plaintiff’s rear end and told her she needed to “tighten it up”,
- attempted to get a plaintiff to socialize with his male friends despite her refusal,
- placed condoms in a drawer,
- often spoke in public about his affinity for women with large breasts,
- frequently walked around the office in only long johns and a tee shirt, and
- showed plaintiffs a pen holder which was a model of a person and in which the pen would be inserted into its “rectum.”
“Because of Sex”
Defendant argued that plaintiffs were not treated differently “based on”, or “because of”, their sex – a required element under the anti-discrimination statutes – because both women and men were exposed to the emails distributed by him.
The appellate court disagreed, noting that the same conduct is not necessarily perceived equally by both sexes:
The mere fact that men and women are both exposed to the same offensive circumstances on the job site, however, does not mean that, as a matter of law, their work conditions are equally harsh. The objective hostility of a work environment depends on the totality of the circumstances. Further, the perspective from which the evidence must be assessed is that of a reasonable person in the plaintiff’s position, considering all the circumstances including the social context in which particular behavior occurs and is experienced by its target. …
Here, defendant argues that plaintiffs were not treated differently based on their sex because both women and men were exposed to the emails distributed by him. This, however, ignores the “social context” in which the emails were distributed. That context involved several incidents in which defendant clearly objectified women. These included touching [a plaintiff]’s backside and suggesting she “tighten” it up, telling [a plaintiff] she should get a breast enlargement and that he “enjoyed” looking at her exposed underwear, and generally commenting that he liked large-breasted women. Considering the totality of the circumstances, a jury could reasonably determine that the emails were sent in an effort to specifically provoke a reaction from the women in the office, and that they were therefore singled out from the male employees.
Hostile Work Environment
The court accepted plaintiffs’ deposition testimony that “subjectively, they viewed defendant’s behavior as offensive and that it made coming to work extremely stressful and upsetting” and turned to the issue of “whether a reasonable person would have objectively considered the environment to have been sexually hostile”.
Under the NYCHRL a plaintiff need not show that the harassment was “severe or pervasive”. Rather, for liability under the NYCHRL,
the primary issue for a trier of fact in harassment cases, as in other terms and conditions cases, is whether the plaintiff has been treated less well than other employees because of her gender. At the summary judgment stage, judgment should normally be denied to a defendant if there exist triable issues of fact as to whether such conduct occurred.
The court held that the plaintiffs’ State Human Rights Law claims failed, as it could not be shown that the alleged harassment was “severe or pervasive”:
There is no question that the emails that defendant circulated in the office were inappropriate. However, their distribution by defendant is closer to what would be described as “boorish” behavior than the “severe” types of incidents which have been found to create a hostile workplace environment[.] … The only email that contained what could arguably be described as pornographic material was the video excerpt entitled “Birthday Vibrator” and it does not appear that the clip was explicit. The other offensive incidents, including defendant’s touching [a plaintiff]’s rear end and suggesting she “tighten” it up, telling [a plaintiff] she should get a breast enlargement and that he “enjoyed” looking at her exposed underwear, and generally commenting that he liked large-breasted women, are too sporadic to be considered “pervasive.”
The court reached the opposite conclusion, however, with respect to plaintiffs’ NYCHRL claims:
While we find that the complained-of incidents do not rise to the level of “severe and pervasive” for purposes of a claim pursuant to the State HRL, this does not dispose of the question whether plaintiffs’ [NYCHRL] claim is still viable. Indeed, we can only dismiss the latter claim if we determine that this is a “truly insubstantial case” in which defendant’s behavior cannot be said to fall within the “broad range of conduct that falls between severe and pervasive’ on the one hand and a petty slight or trivial inconvenience’ on the other”[.] …
Considering the totality of the circumstances, this is not a “truly insubstantial case.” Viewed independently, defendant’s dissemination of emails containing mildly offensive sexual media content may not have been enough to rise to the level of a hostile environment under the [NYCHRL]. However, the overall context in which the emails were sent cannot be ignored. The record supports plaintiffs’ claim that defendant took a perverse pleasure in demeaning and embarrassing his female employees. This was obvious from his statements, related by plaintiffs, concerning, in the case of Hernandez, the size of her breasts, and in the case of Herarte, the size of her backside. While such statements may have been isolated, that is irrelevant under the [NYCHRL], since “[o]ne can easily imagine a single comment that objectifies women being made in circumstances where that comment would, for example, signal views about the role of women in the workplace and be actionable” (Williams, 61 AD3d at 84, n 30). Here, the comments and emails objectifying women’s bodies and exposing them to sexual ridicule, even if considered “isolated,” clearly signaled that defendant considered it appropriate to foster an office environment that degraded women. …
Because, at the very least, defendant’s conduct can be characterized as having subjected plaintiffs to “differential treatment,” the broad remedial purposes of the [NYCHRL] would be countermanded by dismissal of the claim.
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