Sexual Orientation-Based Hostile Work Environment Claim Under the NYC Human Rights Law Survives Summary Judgment

In Walsh v. A.R. Walker & Co., Inc., No. 155009/16, 2018 WL 6505409, 2018 N.Y. Slip Op. 33159(U) (Sup Ct, New York County Dec. 07, 2018), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s sexual orientation-based hostile work environment claim under the New York City Human Rights Law.

In this case,

Plaintiff does not allege or argue that Beane made derogatory or demeaning comments to him about men or gay men. Rather, he contends that [defendant] Beane created an offensive sexualized work environment by, in sum, engaging in simulated sexual activities with a male friend in front of plaintiff, presenting him with sexual objects and pornographic videos, sharing his interest in naked yoga for men and his experiences at nude and gay beaches, asking invasive questions about plaintiff’s sexual orientation and relationships, being overly interested in gay culture and making unwelcome inquiries about plaintiff’s participation as an openly gay man in gay events. Beane testified that no sexual activities occurred, no sex tapes or pornographic materials were given to plaintiff, and any discussions about plaintiff’s activities as a gay man were initiated by plaintiff.

The court concluded that “[t]he sharply divergent testimony of plaintiff and Beane as to what occurred presents classic credibility issues not properly assessed or decided on this motion” and that “[p]laintiff’s sworn testimony that Beane’s offensive conduct included simulated sexual activities and gestures, repeated sex-based remarks, and unwelcome inquiries into plaintiff’s sexual orientation and gay activities, is sufficient to raise a question of fact as to whether plaintiff was subjected to a hostile work environment based on sexual orientation.”

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