Sex-Based Hostile Work Environment Claim Continues Against J. Walter Thompson; Plaintiff Alleged (e.g.) Rape Comments, Unwanted Touching, and “Bossy” Remarks

In Johnson v. J. Walter Thompson U.S.A., LLC, No. 16-CV-1805 (JPO), 2016 WL 7217847 (S.D.N.Y. Dec. 13, 2016), the court denied defendants’ FRCP 12(b)(6) motion to dismiss plaintiff’s sex-based hostile work environment and retaliation claims. Here I’ll discuss the court’s evaluation of plaintiff’s hostile work environment claim.

Plaintiff alleged, among other things, that defendant Gustavo Martinez – who assumed the CEO role at the defendant – subjected her to a hostile work environment by (e.g.) making comments about rape, saying that women are “bossy”, commenting on women’s bodies, and physically touching the plaintiff.

Hostile Work Environment: Three Elements

“To state a claim for a hostile work environment in violation of Title VII, a plaintiff must plead facts that would tend to show that the complained of conduct:

(1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive;

(2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and

(3) creates such an environment because of the plaintiff’s sex.” (Paragraphing added.)

A frequently-asked question is where the “line” is that separates a non-actionable from an actionable hostile work environment. While there is no bright-line rule, this case is instructive as to where such a line might be drawn: threats to rape the plaintiff, demeaning comments about women, and unwanted touching were held sufficient to plausibly allege a sex-based hostile work environment claim.

Element 1: Objective Hostility

As to the first element (objective hostility), the court explained:

The Court begins by addressing the allegations that Martinez touched Johnson without her consent. The presence of any conduct that is physically threatening or humiliating may be especially important in determining whether a work environment is objectively hostile. This is because even if overtly gender-based discriminatory conduct is merely episodic and not itself severe, the addition of physically threatening … behavior may cause offensive or boorish conduct to cross the line into actionable sexual harassment.

Johnson alleges that Martinez touched her routinely: He often rub[bed] her shoulders and stroke[d] her face. Johnson additionally pleads multiple specific instances of unwanted touching. These allegations of physical contact plausibly allege a pattern wherein Martinez asserted physical power over Johnson without her consent. … These repeated instances of nonconsensual contact, especially when coupled with offensive and explicit comments, inform the Court’s understanding of the additional allegations against Martinez discussed below.

Johnson also alleges numerous potentially threatening comments by Martinez. In May 2015, for example, following an exchange with Johnson about his discussing rape at a meeting, Martinez approached Johnson at her desk and, in front of her colleagues in their shared open office, instructed her to come with him so that he could “rape [her]” in the bathroom. He then grabbed Johnson around the neck and started to laugh. That same day, Martinez interrupted a meeting with multiple female employees, including Johnson, to ask Johnson which female staff member he could rape. On a separate occasion, Martinez ushered colleagues out of his office but held Johnson behind, saying, “let’s go talk about sex now … I am going to close the door.” Johnson also learned that in spring 2015 Martinez had told another employee that a certain female senior global executive needed to be “hogtied” and “raped into submission.” In the course of a business meeting, Martinez called a female JWT Director “young, willing, and ready.”

Johnson further alleges that Martinez made myriad other comments about rape and sex. Defendants argue that many such comments suggest merely a lack of civility, and, in any event, were not gender-motivated because some of the comments were made in mixed company (and therefore not specifically directed at women). But Martinez’s multiple comments alluding to his raping Johnson and other female employees color and make relevant his other, more generalized invocations of rape and sex, even if those comments were made in the presence of men or were not exclusively targeted at women. That is to say, these other remarks did not occur in a vacuum: On numerous occasions, Martinez used similar language to threaten female employees, including Johnson. The Court is thus especially mindful that it should consider all of Martinez’s comments with “a full appreciation of the social setting or the underlying threat of violence”—in part a recognition that, as compared to men, “women are disproportionately victims of rape and sexual assault.”

Defendants argue that still other remarks allegedly made by Martinez should be discounted because they are not overtly or intentionally “sexual.” But every comment underpinning a hostile work environment claim need not be “sexual in nature.” Certain of Martinez’s comments, viewed in the context of his physically intimidating behavior and repeated sexually explicit and demeaning statements, suggest a workplace cut through with hostility. After Johnson’s pregnancy, for example, Martinez made a “snide remark” about her eating at a work event, implying that she should eat less. He made similarly derogatory comments about other women’s bodies. These comments, though perhaps not obviously sexual, are, considered in context, potentially sexual or sexually hostile in nature and implication.

Considering the alleged conduct in context, Johnson has pleaded enough to support a plausible inference that an objectively hostile work environment existed. The question of whether a work environment is sufficiently hostile to violate Title VII is one of fact, and the Court thus declines to decide it at the motion-to-dismiss stage.

Element 2: Subjective Hostility 

As to the second element (subjective hostility), the court explained:

The effect on the employee’s psychological well-being is … relevant to determining whether the plaintiff actually found the environment abusive,” but such a showing is not required. Defendants do not appear to contest the effect of the alleged conduct on Johnson herself. Indeed, Johnson claims that she was “intimidate[d] and humiliate[d]” by Martinez’s treatment of her. And her further reports of flagging Martinez’s conduct for superiors and other colleagues evince a degree of concern and agitation about the conduct to satisfy this prong.

Element 3: Causation (“Because of” Sex)

As to the third element (causation and whether the alleged hostile environment is “because of the plaintiff’s sex”), the court explained:

As an initial matter, Johnson alleges a fair number of interactions and comments that, on their face, were sex-based, such as commenting on women’s bodies, including Johnson’s, and making sexual remarks about women (including that a female employee is “young, willing, and ready”).

Moreover, in the context of Johnson’s collective allegations, Martinez’s repeated references to sex and rape—both coupled with and divorced from physical or physically intimidating conduct—reveal a gendered component of the conduct, sometimes rising to the level of explicit gender animus. In threatening to “rape” Johnson (even jokingly) and asking which other female employees he could rape, Martinez asserted power over Johnson in an explicitly sexualized and gendered form.

But it is not just Martinez’s overtly sexual behavior that is plausibly viewed as undertaken because of Johnson’s sex. The Second Circuit has established that incidents that are facially sex-neutral may sometimes be used to establish a course of sex-based discrimination—for example, where the same individual is accused of multiple acts of harassment, some overtly sexual and some not.” So while some incidents may not “directly amount” to sex discrimination “when considered alone in isolation, an inference that such conduct was gender-based could be drawn” given evidence of other sex-based conduct. To that end, alleging some “overtly sexual comments” can be sufficient for a court to conclude that other “facially gender-neutral threats … were, in fact, ‘because of’ … sex.” The Court thus takes into account Martinez’s repeatedly touching Johnson (including grabbing her by the neck and shoving her, as well as taking her apple from her hand, taking a bite, and returning it) as part of a broader effort to intimidate her physically because of her sex.

Through both his words and his actions, even if not overtly sexual, Martinez allegedly exhibited hostility toward the idea of women exercising power in the workplace. For example, Martinez’s references to Johnson’s being “bossy” can be understood not as a sex-neutral insult but rather as invoking a double standard for men’s and women’s leadership in the workplace. … The view of female bosses as “bossy” is a feature of the glass ceiling problem[ ], namely, that given the close association of managers and leaders with masculinity, subjects tend to dislike women whom they rate highly as managers and leaders because of role incongruity—the sense that it is incongruous for women to successfully perform masculine roles as opposed to feminine roles. This brand of stereotyping has been deemed impermissible under Title VII. … When considered alongside his repeatedly calling Johnson “bossy,” Martinez’s conduct—including his physical touching and his lewd comments—can be read as a “power play[ ],” some mix of “sex-based animus” and “misdirected sexual desire,”, that aimed to undermine Johnson’s status at JWT because of her sex.

The totality of Martinez’s alleged conduct, both overtly sex-based or sexual and not, can be read as a campaign to assert power over Johnson—to sexualize her, to demean her, to professionally diminish her, and to deprive her of bodily security—because of her sex. Johnson’s Title VII hostile work environment claim therefore survives the motion to dismiss.

Because plaintiff plausibly pleaded a claim under Title VII, she necessarily did so under the New York State Human Rights Law (which is employs the same standard and analysis as under Title VII) and the New York City Human Rights Law (which employs a less-stringent standard).

Individual Liability

Plaintiff also sufficiently alleged individual liability on Martinez’s part under the New York State and City Human Rights Laws:

[I]ndividual defendants may be sued in their personal capacities where they aid, abet, incite, compel, or coerce an action prohibited by State and City Law. Because the overwhelming majority of the conduct described above was incite[d] by Martinez personally, the allegations support a finding that he actually participate[d] in the conduct giving rise to a discrimination claim, thus satisfying the standard for individual liability. Martinez’s argument that he cannot be held liable for “aiding and abetting” his own conduct has been rejected by numerous courts in this Circuit. All that is required for individual liability to flow is that the corporate employer have carried out a predicate act of unlawful discrimination, which Johnson has adequately pleaded here.

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