“Offensive” Content Shown at Work Insufficient to Demonstrate Disparate Treatment, Court Holds

In some cases, displays of racially- and/or sexually-charged content (e.g., videos) at work might be evidence of actionable employment discrimination.

That is, of course, not an ironclad rule. Consider, for example, the recent case of Johnson v. IAC/InterActiveCorp, 2020 NY Slip Op 00488 (NY App. Div. 1st Dept. Jan. 23, 2020), in which the New York Appellate Division, First Department affirmed the dismissal of plaintiff’s discrimination claims.

One aspect of the court’s decision is instructive in this regard:

In rejecting plaintiff’s claim of disparate treatment based on gender and race, the motion court properly relied on the federal court’s findings that the record belied plaintiff’s claim of unequal support and feedback compared to the male video editors. The motion court correctly concluded that certain sexual and/or racial content in a photo and some videos shown at meetings was insufficient to establish disparate treatment, as such content was displayed in the course of the company’s creative work on the CollegeHumor website, and the Human Resources Policy Manual that plaintiff received when she was hired cautioned that such potentially offensive content existed on the website and that she may be exposed to it in the course of her work.

The court further found that “[t]o the extent that plaintiff argues that she was unlawfully discharged on account of her gender, the motion court correctly concluded that she cannot establish a prima facie case of gender discrimination because the evidence shows that she was replaced by another woman, not a man.”