A recent Southern District decision, James v. NYC Health and Hospitals Corporation, illustrates that the anti-discrimination laws are not a “general civility code” and underscores the critical requirement that, in order to be actionable, any alleged discrimination or harassment must be “because of” a protected characteristic (here, the plaintiff’s sex).
Plaintiff, a female Special Officer in the Hospital Police Department at Lincoln Hospital, alleged (among other things) that her male co-worker (Officer Purvis) slapped her in the face when she touched his personal property, after which he said “I kind of enjoyed that.”
This was insufficient to support a sexual harassment claim. It reasoned:
Taking plaintiff’s allegations as true, Lincoln Hospital was an unpleasant place to work for plaintiff following the incident. She did not feel respected by her colleagues and believed her supervisors did not take her allegations seriously enough. She and Officer Purvis were not immediately separated following the incident. She encountered Officer Purvis on a handful of occasions while he was on leave and on certain occasions and felt intimidated and/or threatened by him.
There is nothing in the record beyond plaintiff’s cursory allegations, however, that suggest any of defendants’ alleged misconduct was because of plaintiffs sex. As an initial matter, Officer Purvis’s behavior toward plaintiff was inappropriate, but no reasonable factfinder could determine it was based on sex. Officer Purvis did not make statements of an explicitly or implicitly sexual nature; his conduct was not of a sexual nature, and the circumstances surrounding the incident do not suggest they were incited because of sexual tension or a sexual rejection. This is not a situation, for example, where plaintiff refused her colleague’s sexual advances and in response, he slapped her.
Plaintiff also failed to show that her colleagues behaved unprofessionally (following the incident) “because of” her sex: “Although plaintiff tries to make the issue into one of sex by stating her male colleagues threatened withholding backup, there is nothing to suggest they did so because she was a female or because of a general animus toward women.”