Hostile Work Environment Claim Stated Under 42 U.S.C. § 1981 Based on Racial Epithets

In Amaya v. Ballyshear LLC et al, 17-cv-1596, 2018 WL 1319003 (EDNY March 14, 2018), the court held, inter alia, that plaintiff (an Ecuadorian woman amd member of the Hispanic race) sufficiently alleged a race-based hostile work environment claim based on anti-Hispanic epithets.

The court explained:

[T]o survive a motion to dismiss, “a plaintiff need only plead facts sufficient to support the conclusion that she was faced with ‘harassment … of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse[.]’ ” Patane, 508 F.3d at 113 (quoting Terry, 336 F.3d at 148).

The Defendants allege that the conduct is not severe or pervasive enough to successfully state a claim for hostile work environment under § 1981. First, this is a factual question that is generally inappropriate for the Court to determine on a motion to dismiss. See Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997) (“The fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious of cases.” (internal citations omitted)). Further, in the Court’s view the Plaintiff’s facts as they pertain to race based hostile work environment are sufficient to survive a motion to dismiss. See, e.g., Yang Zhao v. Keuka Coll., 264 F. Supp. 3d 482, 489 (W.D.N.Y. 2017); Doe v. City of N.Y., 583 F. Supp. 2d 444, 450 (S.D.N.Y. 2008); Gad-Tadros v. Bessemer Venture Partners, 326 F. Supp. 2d 417, 425 (E.D.N.Y. 2004) (Spatt, J.).

In the Second Circuit, it is long settled that Hispanics constitute a race for the purposes of § 1981. Vill. of Freeport v. Barrella, 814 F.3d 594, 606 (2d Cir. 2016). While it is well-established that § 1981 does not prohibit discrimination on the basis of national origin, see Rigodon v. Deutsche Bank Sec., Inc., No. 04 Civ. 2548, 2004 WL 2471859 (S.D.N.Y. Nov. 1, 2004), “the Supreme Court made clear that construing ‘race’ must be interpreted according to ‘[t]he understanding of race in the 19th century,’ when § 1981 was adopted.” Long v. Marubeni Am. Corp., 406 F. Supp. 2d 285, 289 (S.D.N.Y. 2005) (quoting in Saint Francis Coll. v. Al–Khazraji, 481 U.S. 604, 610, 107 S. Ct. 2022, 95 L. Ed. 2d 582 (1987)). The Second Circuit has noted that claims based on both race and national origin “may substantially overlap or even be indistinguishable depending on the specific facts of a case[.]’ Barrella, 814 F.3d at 606 (internal citations omitted).

The alleged incidents of discrimination directed at the Plaintiff, which includes the use of epithets regarding “Spanish people,” and “illegal[s]” are sufficient for the Court to conclude that the Defendants intended such language in a racial context.

The court also denied defendants’ motion to dismiss plaintiff’s claims under 42 U.S.C. § 1981 against the individual defendants, reasoning that “it is much too early to conclude that there was no knowledge of the situation, corporate culture that condones discrimination and harassment, or negligence in managing subordinates.”

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