In Brittany McHenry v. Fox News Network et al, 2020 WL 7480622 (S.D.N.Y. Dec. 18, 2020), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claims of gender discrimination and sexual harassment asserted under the New York City Human Rights Law.
From the decision:
The Amended Complaint adequately pleads claims against Murdoch for sexual harassment and gender discrimination under the NYCHRL. It alleges that on multiple occasions Murdoch sent McHenry sexually explicit, unwanted text messages. Am. Compl. ¶¶ 71–80. In two, Murdoch threatened to send McHenry photos of his genitalia. See id. ¶¶ 74 (“Dick pic coming in 5 sec!!!”), 80 (“Keep being negative and I’ll send you another dick pic”). Attempting to minimize such conduct, Murdoch argues that these text messages do not support the inference that McHenry was harassed because of her gender. Murdoch Mem. at 11. That is wrong. One text message contains an implicit reference to gender: “The picture looks so good I would knock the picture up …. crazy sexy love your legs[.]” Am. Compl. ¶ 78. And the Amended Complaint further alleges that Murdoch doctored photos to make it appear that McHenry had sent him an image of herself with “her cleavage and nearly bare breast shown.” Id. ¶ 106. Hostile work environment claims similarly alleging a defendant’s dissemination of sexually explicit pictures of a co-worker plaintiff have been held to meet the pleadings standards not only of the NYCHRL, but of the more demanding Title VII. See, e.g., Gallagher, 2017 WL 2345658, at *8; see also id. at *7 (“displays of obscene photographs and sexually offensive remarks can constitute a gender-based hostile work environment” under Title VII). And in Ruiz v. City of New York, No. 14 Civ. 5231 (VEC), 2015 WL 5146629 (S.D.N.Y. Sept. 2, 2015), the plaintiffs, a romantically involved man and woman, were sent—as were other employees—a photo with the female plaintiff’s face “photoshopped” onto a naked women’s body. Id. at *9. The district court held that allegations of this conduct (and the use of sexually explicit graffiti using plaintiffs’ names) stated a hostile work environment claim under the Title VII and NYSHRL. Id. Similarly, here, the allegations that Murdoch sent McHenry doctored messages with an explicit photo purporting to be of her and numerous sexually explicit text messages state a claim under the NYCHRL.
*10 Murdoch argues that these allegations fall short of alleging harassment because McHenry does not allege any actual “sexual advances” or that he was “propositioning Ms. McHenry or demonstrating a romantic interest in her.” Murdoch Mem. at 12. That characterization of the factual allegations against Murdoch is incorrect. His communications, as pled, are readily construed to reflect sexual advances and propositions, albeit unusually crude and clumsy ones, towards her. In any event, Murdoch’s legal premise is wrong, as the NYCHRL does not require that the defendant have had a romantic interest in the plaintiff, but only that he subjected her to “unwanted gender-based conduct.” Erasmus, 2015 WL 7736554, at *7; see Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 410–11 (S.D.N.Y. 1996) (“[S]exual harassment is not limited to unwanted physical touching; it can also consist of the display of obscene visual representations or the communication of sexually offensive remarks.”).
Murdoch next argues that the Amended Complaint does not state a claim because it does not identify a similarly situated male employee who received “more favorable treatment from Mr. Murdoch than Ms. McHenry.” Murdoch Mem. at 11 (emphasis in original). That argument is also easily dispatched. The Amended Complaint alleges that, “[u]pon information and belief,” Mr. Murdoch did not make sexual advances on male employees, or threaten to send them “dick pics.” Am. Compl. ¶ 146.9 Murdoch will be at liberty to defend against these claims at summary judgment and/or trial by demonstrating, if true, that he sent similar sexualized text messages and made similar sexual advances to his male colleagues. But neither the Amended Complaint nor the materials cognizable on Murdoch’s motion to dismiss so establish.
Finally, Murdoch argues that his advances and sexualized communications to McHenry were not “unwanted.” Murdoch Mem. at 13; Murdoch Reply at 4. In support, Murdoch states that McHenry “repeatedly instigated flirtatious conversations” with him, Murdoch Mem. at 13, and that one can “logically infer” from his messages that he was “responding to pictures or messages from McHenry,” Murdoch Reply at 4 (citing Eaves v. Design for Fin., Inc., 785 F. Supp. 2d 229, 252 (S.D.N.Y. 2011)). But the Amended Complaint does not allege that McHenry invited Murdoch’s communications, whether by verbal or written flirtation or by sending him provocative photographs of herself. And the text messages that the Amended Complaint cites, although not purporting to capture the entirety of the communications between the two, do not affirmatively support the inference that McHenry cultivated Murdoch’s text messages to her, including those about his genitalia and sexual desires. On the contrary, the Amended Complaint pleads that, at “all times,” McHenry did not consent to receiving sexual messages or advances from Murdoch’s sexual advances. Am. Compl. ¶ 82.
The court concluded this portion of its analysis by noting that while defendant will have the opportunity – after discovery – to renew his argument that plaintiff “invited sexualized banter,” at this juncture, “on the limited material cognizable on the pleadings, McHenry has stated claims for sexual harassment and discrimination under the NYCHRL.”