A recent case, decided by the Eastern District of New York on October 17, 2018, illustrates what does – and, as relevant here, does not – qualify as a “hostile work environment.” The decision is Thompson v. MTA New York City Transit et al, 17-cv-5857, 2018 WL 5045762 (E.D.N.Y. Oct. 17, 2018).
The court outlines the basics of the “hostile work environment” cause of action. From the decision:
[I]t is ‘axiomatic’ that in order to establish a … hostile work environment under Title VII, a plaintiff must demonstrate that the conduct occurred because of [his]” protected status. Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)). Further, “a plaintiff must show that ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Littlejohn v. City of NY, 795 F.3d 297, 320–21 (2d Cir. 2015) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). A court considering whether a work environment is hostile should consider the totality of the circumstances, including “(1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee’s work performance.”
Applying the law, the court concluded that while the messages sent by defendants “were tasteless and offensive, the plaintiff has not established that the defendants harassed him because of his race or gender” and that “it is clear from the complaint that [defendants] were responding to the plaintiff’s criticism of the Union.”
It also found that “plaintiff does not allege that [defendant] used the terms ‘sex offender’ and ‘Tranny'[] because of the plaintiff’s gender” but instead that defendant “leveled these insults to embarrass and insult the plaintiff—apparently because of their disagreement about the Union.”
The comments, held the court, did “not constitute sex-based discrimination merely because they include sexual content.”