A recent Southern District decision, Brown v. City of New York, outlines conduct that could easily form a roadmap for a corporate sexual harassment training course (in the “what not to do” sense).
There, New York City employee Sheila Brown sued the City of New York, alleging (under Title VII of the Civil Rights Act of 1964 and the New York State and City Human Rights Laws) that she was subjected to a sexually hostile work environment by a co-worker (Miller) and retaliated against for opposing the City’s unlawful employment practices.
Judge Engelmayer denied defendants summary judgment as to plaintiff’s hostile work environment claims, but granted their motion with respect to their retaliation claims.
Hostile Work Environment
The court found that a reasonable jury could find an objectively hostile work environment, citing the following evidence:
Brown supervised Miller for approximately three years, between May 2007 and March 2010. In that time period, Miller repeatedly touched and rubbed Brown’s hands despite her requests that he stop, exhibited a general aggressiveness towards women, and stared at female co-workers in her presence. Miller informed Brown that he’s not taking orders from females. Brown also observed Miller with his hand on his crotch while he was sitting at his desk, after which he would use the restroom by the kitchen [to] wash up.
Victor, Brown’s direct supervisor, assigned Miller to be under Brown’s supervision, and Brown testified that Victor ignored her many complaints about Miller’s workplace behavior.
Furthermore, while under Brown’s supervision and known to Brown, Miller acted inappropriately towards other female employees. Miller would give them bear hugs, would masturbate in the office bathroom, and would ask female employees for sex. On March 5, 2010, Miller sexually exposed himself and grabbed some of the female workers on [Brown’s] floor. Miller also assaulted [a female employee] when she was in the bathroom, and masturbated in front of [a female employee] when she was working in her cubicle, an incident witnessed by numerous other employees.
Taken together, these actions suffice for a reasonable jury to find that Brown was subjected to a hostile work environment.
The court found that Miller’s (plaintiff’s co-worker’s) conduct could be imputed to defendants. Generally, an employer is liable for co-worker harassment “if the plaintiff demonstrates that the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.”
It rejected the defendants’ argument that “Miller’s conduct towards Brown cannot be imputed to the City, because it has an anti-discrimination policy that supplies a reasonable avenue for complaint.” Even if that were true,
Liability may be imputed to the [defendants], based on Victor’s knowledge of Miller’s conduct, Brown’s complaints to Victor about that conduct, and Victor’s failure to act: Despite offering a reasonable avenue of complaint to plaintiff, employer defendants can still be held liable if plaintiff can show that they knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action. This standard requires a plaintiff to show that (1) someone had actual or constructive knowledge of the harassment, (2) the knowledge of this individual can be imputed to the employer, and (3) the employer’s response, in light of that knowledge, was unreasonable. [W]ith respect to imputing the knowledge of employees to an employer, [a]n official’s actual or constructive knowledge of harassment will be imputed to the employer when principles of agency law so dictate. That will be the case when a) the official is at a sufficiently high level in the company’s management hierarchy to qualify as a proxy for the company, or b) the official is charged with a duty to act on the knowledge and stop the harassment, or c) the official is charged with a duty to inform the company of the harassment.
The court cited evidence that Brown reported Miller’s inappropriate conduct to her supervisor, Victor, and that those complaints were ignored. There was therefore a “sufficient basis upon which a reasonable jury could impute liability to the defendants, because they knew of the harassment but did nothing about it.”
The court also denied defendants’ motion for summary judgment as to plaintiff’s hostile work environment claims under the New York State and New York City Human Rights Laws, even under the arguably “stricter” standards for imputing liability to an employer.
Retaliation
Though it permitted plaintiff’s hostile work environment claims to continue, the court dismissed plaintiff’s retaliation claims.
Specifically, plaintiff failed to make out a prima facie case of retaliation. First, a memo drafted by Brown regarding Miller did not rise to the level of “protected activity”, as it made “no explicit mention of any allege sexual harassment, either in regards to herself or in regards to her co-workers.”
The court reasoned:
The closest the Memo comes to alleging sexual harassment is its statement that Miller becomes agitated with supervision and especially a female, and has an aggressive behavior with females. However, Brown’s Memo does not mention Miller staring at, touching, or hugging her, or any other City female employee. Nor does the Memo say anything about Miller’s masturbating at work, either at his desk or in the bathroom. Those facts appear in Brown’s later EEO Complaint, which explicitly outlined her allegations of hostile work environment, and were abundantly documented in discovery in this case. Brown’s Memo merely chronicles Miller’s bizarre and discordant behavior in the workplace, while making at best glancing references to any gender-focus on that behavior. Accordingly, Brown’s Memo does not constitute protected activity under Title VII because a reasonable jury could not find that she wrote it to protest or oppose statutorily prohibited discrimination.
Nor did plaintiff establish an “adverse employment action”, which required a “materially adverse change”.
The assignment of additional clerical duties was not enough:
Brown’s assertion is that she was assigned extra clerical duties and caseworker responsibilities, and thus was technically demoted. But, on the undisputed facts before the Court, this does not constitute a materially adverse change. In 2005 or 2006, two years before Miller arrived and four years before Brown filed her complaint, she had been assigned similar clerical work. … Although Brown may have been responsible after filing her complaint for answering more calls, her duties did not significantly change. … The assignment of minor, additional duties—especially where similar tasks have been a part of Brown’s duties in the past—may be minor annoyances. But they are not materially adverse change[s] in the terms and conditions of [Brown’s] employment.
Nor did a reprimand constitute an adverse action, since Brown did “does not claim that she suffered any negative consequences after the City released the reprimand, and there is no record evidence of such consequences.”
Finally, even assuming the existence of “protected activity” and an “adverse employment action”, there was no evidence of a causal relationship between the two.
Though the New York City Human Rights Law provides a broader retaliation standard – in that it does not require a showing that the complained-of employer conduct was “materially” adverse – plaintiff’s NYCHRL retaliation claim still failed.
In particular, plaintiff’s memo that described Miller’s “bizarre workplace behavior … did not discuss discriminatory conduct” and was not written “before the retaliatory conduct occurred”. In addition, plaintiff was “assigned the same sort of clerical tasks throughout her tenure at HRA, and the process that led to her reprimand had been initiated well before she wrote the Memo”.