In employment discrimination cases, assuming a plaintiff sufficiently/plausibly alleges one or more claims in their complaint, the next procedural battleground is (usually) “summary judgment”.
You can think of summary judgment as the last hurdle standing between a plaintiff and the holy grail of civil litigation: a jury trial. At this stage, one party asks the court to decide that a jury shouldn’t hear the case, because it is so one-sided, and the other side’s evidence is so thin, that no reasonable jury could possibly find in their favor.
There is a rich body of case law evaluating hostile work environment sexual harassment cases on a defense motion for summary judgment. The so-called “line” in such cases – i.e., the point at which workplace conduct becomes an actionable hostile work environment – is not clearly drawn. As the U.S. Court of Appeals for the Second Circuit observed in Redd v. N.Y. Div. of Parole, 678 F.3d 166 (2d Cir. 2012):
The line between complaints that are easily susceptible to dismissal as a matter of law and those that are not is indistinct. On one side lie complaints of sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; and obscene language or gestures …. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers. And on either side of the line there are, depending on the circumstances, gradations of abusiveness.
The below cases are examples of court determinations that the plaintiff presented enough evidence to survive defendants’ motion for summary judgment. To save space I have included excerpts only; for a complete understanding of the court’s reasoning, the reader should read the whole case. (Note that there are many examples of cases that go the other way, maybe on seemingly similar facts.)
When viewed in the light most favorable to Plaintiff, the acts and comments of Dr. Wisoff, Blate and Plaintiff’s other co-workers are sufficient for a fact finder to conclude that a hostile work environment existed because of Plaintiff’s sex in violation of the [New York State Human Rights Law]. In particular, Plaintiff has proffered evidence that Blate placed her hands inside Plaintiff’s pants and that, after Blate illegally entered Plaintiff’s medical records, Blate and other NYU employees harassed Plaintiff in 2009 and/or 2010 regarding her virginity, future sexual experiences, potential pregnancy and gynecological problems, and made gestures and comments with sexual innuendo. … A reasonable fact finder could conclude that these actions, taken together, were sufficiently severe and pervasive to create a hostile work environment.
The Defendants move for summary judgment by arguing that Plaintiffs failed to create a genuine issue of material fact as to whether the alleged conduct was severe or pervasive. This argument is indefensible. The record is replete with specific facts alleging that Plaintiffs endured prevalent abuse and harassment at the workplace, and that the acts were subjectively and objectively severe or pervasive enough to alter the terms of Plaintiffs’ employment. … Gabrielle D’Annunzio experienced approximately thirty instances of sexual harassment, including having her buttocks grabbed. Lauren D’Annunzio was sexually harassed three to four days a week, including physical harassment such as Orellano’s exposing of her bra and grabbing of her body. In addition, it is undisputed that Orellano physically attacked her in the basement of the restaurant in July 2008. Finally, Ashley D’Annunzio was subjected to on-going comments about her figure and how she could be sexually pleasured outside of work.
These facts demonstrate that the conduct was severe and pervasive, and that an objectively hostile work environment was created. Defendants’ absurd attempts to argue that the grabbing and slapping of Plaintiffs’ butts, touching of breasts, and pulling up of Plaintiff Lauren’s blouse constitute non-actionable “innocuous physical contact” are an outrageous misstatement of the record.
McIntyre’s [plaintiff’s supervisor’s] comments, though not presenting an obvious case of hostile work environment, are sufficiently beyond the line drawn in [the U.S. Supreme Court’s decision in Harris v. Forklift Systems, Inc., 510 U.S. 17 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)] to warrant a trial. The comments persisted on a weekly basis over an interval that lasted at least two and perhaps three months. Though not threatening, they were more than merely offensive. For a male to say to a female employee under his supervision that her husband was “not taking care of [her] in bed” is the sort of remark that can readily be found to be a solicitation for sexual relations coupled with a claim of sexual prowess and can just as readily be found to have been perceived as such by the female employee. The weekly repetition of such a remark over several weeks only served to reenforce its offensive meaning and to make sexual intimidation, ridicule, and insult a pervasive part of Desardouin’s workplace, effectively changing the terms and conditions of her employment. Indeed, Desardouin’s affidavit stated that she found McIntyre “threatening,” and that he made “sexual advances” toward her and another employee. The allegations of repeated solicitation of sexual relations in a vulgar and humiliating manner suffice to warrant a trial.
Brown v. City of N.Y., No. 11 CIV. 2915 PAE, 2013 WL 3789091, at *11 (S.D.N.Y. July 19, 2013):
[W]hile under Brown’s supervision and known to Brown, Miller acted inappropriately towards other female employees. Miller would give them “bear hugs,” would masturbate in the office bathroom, and would ask female employees for sex. On March 5, 2010, Miller sexually exposed himself and grabbed some of the female workers on [Brown’s] floor. Miller also assaulted Cherry–Ann Samuel when she was in the bathroom,  and masturbated in front of Valdine Depeiza when she was working in her cubicle,  an incident witnessed by numerous other employees.Taken together, these actions suffice for a reasonable jury to find that Brown was subjected to a hostile work environment.
Plaintiff began working as a middle school teacher at Felix Festa Middle School in August 2006. The following year, Felix Festa teacher Scott Cooper became chairperson of plaintiff’s department. As chairperson, Cooper was responsible for observing and evaluating plaintiff’s performance and acted as a mentor to plaintiff. Plaintiff and Cooper initially were friendly with one another and occasionally socialized outside of work. However, at a schoolsponsored holiday party in December 2007, Mr. Cooper inappropriately “smacked” plaintiff’s “rear end.” …
In January 2008, after the school’s winter recess, plaintiff reported the incident to Felix Festa’s principal, Dianne Basso. Plaintiff also told Basso that Cooper had previously made comments plaintiff felt were inappropriate, although plaintiff acknowledged she may have taken those comments “out of context.” For example, on one occasion a janitor witnessed plaintiff and Cooper exiting Cooper’s classroom together. Cooper turned to the janitor and said: “Look at that smile on her face[, w]here do you think that came from?” Plaintiff also told Basso that Cooper had embarrassed her by (1) making disparaging comments about the cleanliness of her car in front of plaintiff’s students, and (2) criticizing the organization of her file cabinets. …
Here, although it is a close call, plaintiff has demonstrated the existence of a material issue of fact as to whether Cooper’s conduct created a hostile work environment. The incident at the holiday party—viewed together with the inappropriate comments Cooper allegedly made prior to the incident, and also viewed in a light most favorable to plaintiff—amounted to conduct more severe than a mere “pedestrian annoyance.” Importantly, Cooper was the chairperson of plaintiff’s department at the time of the incident, and plaintiff was in only her second year of probationary employment. Around the time of the incident Cooper regularly observed plaintiff’s classes, and his written evaluations presumably could have played a role in determining whether plaintiff would eventually be tenured. In this context, for Cooper to approach plaintiff from behind and “smack her on the rear,” without plaintiff’s implied or actual consent and in the presence of her coworkers, constituted behavior inconsistent with what one would expect to see between a supervisor and his subordinate at a work-related holiday party. Plaintiff has thus raised a triable issue of fact with respect to her hostile work environment claim.
Caban v. Richline Grp., Inc., No. 10 CIV. 559 ALC, 2012 WL 2861377, at *8 (S.D.N.Y. July 10, 2012):
[T]he evidence before the Court, including deposition transcripts, affidavits, and other documentary evidence, is sufficient to create a factual dispute that Caban was subjected to a hostile work environment. Specifically, Caban presented evidence that Francis exposed his penis to her, repeatedly made sexual advances on her, subjected her to rude and offensive comments, and threatened and intimidated her. Caban also presented evidence that Ramashan helped contribute to the sexually charged environment and sarcastically mocked Caban for making a complaint against Francis by conspicuously flirting with him in her presence and making several derogatory comments about her.8 The record makes clear that these were not isolated, sporadic instances, but were part of Caban’s daily life at Richline from November 2007 until she was laid off in September 2008. See Terry v. Ashcroft, 336 F.3d 128, 149 (2d Cir.2003). Therefore, Caban has alleged facts sufficient to find pervasive sexual harassment.
Taking the evidence in the light most favorable to Redd and accepting her version of the events as true, as we are required to do and a jury would be permitted to do, we have several difficulties with the district court’s conclusions that no rational juror could find that Washington had sexually abused Redd because of her sex and that the abuse was not sufficiently severe to create a hostile work environment in violation of Title VII. *179 According to Redd’s sworn statements, Washington touched Redd’s breasts on three occasions. Redd characterized Washington’s touches in a variety of ways. In the first incident, which occurred in Washington’s office, Washington “brushed” against Redd’s breasts, but did so in a way that was sufficiently substantial to unnerve Redd and cause her to “spill[ ] water … all over the transfer list” she was reviewing. (Redd Dep. 142.) In the second incident, Washington “came up” to Redd in a hallway and “touched” and “rubbed up against” Redd’s breasts. (Id.) In these incidents, Washington “felt [Redd’s] breasts.” (Id. at 141 (emphasis added).) In the third incident, Washington came over to Redd who was sitting at a computer in a secretarial area and “reached over and touched” Redd’s breasts. (Id. at 142–43.) There is nothing conclusory about these accusations. …
In sum, questions as to Washington’s conduct and motivation, and as to and whether a reasonable person in Redd’s position would have found Washington’s conduct severely abusive, are questions of fact. A jury, of course, would not be required to credit Redd’s testimony describing Washington’s conduct and would not be required to draw inferences in Redd’s favor. But that testimony and those inferences could not properly be rejected by the court as a matter of law.
For purposes of the defendants’ motion for summary judgment, it is undisputed that defendant Michael Tintweiss, a vice president of the defendant Quality Payroll Systems, Inc. (“QPS”): told Schiano that if she wanted a raise she was “sleeping with the wrong employee” (a reference to her romantic relationship with another co-worker) and repeated similar comments several times during the course of the next five months; at an office Christmas party in the presence of other employees, placed his hand on Schiano’s skirt and upper thigh and photographed himself doing so; asked if they could go together to Schiano’s hotel room after the party; and, on several occasions, approached Schiano from behind while she was working, leaned into her, and placed his hands on her back, neck, and shoulders. The district court concluded that this behavior was not severe or pervasive enough to create a hostile work environment and therefore granted summary judgment to the defendants. …
We think that the district court similarly erred in concluding that Tintweiss’s conduct did not, as a matter of law, unreasonably interfere with Schiano’s job performance because it did not rise to the same level of interference as did the misbehavior in [other cases]. According to the plaintiff, Tintweiss’s harassment was so distracting that it motivated her, in part, to request that a partition be set up specifically around her desk. The defendants argue that Schiano requested a cubicle solely because she wanted privacy from all employees in general, but that cannot be resolved on this record as a matter of law.
Holtz v. Rockefeller & Co., 258 F.3d 62, 75–76 (2d Cir. 2001) (vacating summary judgment to defendant):
Were a rational jury to credit Holtz’s version of the events, it could find that Mumbach’s conduct crossed the line between “boorish and inappropriate” behavior and actionable sexual harassment. Although that line is admittedly indistinct, its haziness counsels against summary judgment in this case. “An Article III judge is not a hierophant of social graces. Evaluation of ambiguous acts such as those revealed by the potential evidence in this case presents an issue for the jury.” Gallagher v. Delaney, 139 F.3d 338, 347 (2d Cir.1998).
Holtz testified that Mumbach “grabb[ed]” and “placed his hand on [her] hand” on a “daily” basis, “constantly,” “whenever he had the opportunity,” “every time [she] would try to hand him a paper,” and that he “used to touch [her] hair a lot.” This conduct “was ongoing over months and months.” While the alleged physical contact resulted in no physical injury, if it in fact occurred in the manner in which Holtz described it, a jury could find that it was objectively reasonable for her to view it as offensive, hostile or abusive in light of (1) its frequency and duration, (2) the fact that Mumbach touched no other person in *76 this way, and (3) the background context of Mumbach’s other alleged sexually suggestive conduct, including “obscene leers,” repeated efforts to peek underneath Holtz’s clothing, and a pattern of teasing comments about her sex life.
As to the requirement that the alleged harassment be subjectively offensive, Holtz asserts, and RCI is hard put at this stage of the proceedings to disprove, that she found this conduct offensive. She testified that she interpreted Mumbach’s comments as accusing her of being “a loose woman”; that she asked Mumbach to stop and complained of his conduct to her superiors; that she “burst into tears” when describing his conduct to Massimo; and that two years after she left RCI, she still became physically and emotionally distressed talking about the alleged harassment. These sworn assertions, if credited by a trier of fact, would suffice to show that Holtz was subjected to a hostile work environment. The alleged conduct arguably was “both objectively and subjectively offensive” such that a jury could conclude that “a reasonable person would find [it] hostile or abusive, and … the victim did in fact perceive [it] to be so.” Faragher, 524 U.S. at 787, 118 S.Ct. 2275.
There is also a triable issue as to whether Mumbach’s alleged conduct “ ‘unreasonably interfere[d] with [Holtz’s] work performance.’ ” Id. at 788, 118 S.Ct. 2275 (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). Holtz testified that “it [was] almost impossible for [her] to do [her] work without getting upset” when the harassment occurred.
We thus conclude that the district court erred in granting summary judgment to RCI on Holtz’s hostile work environment claim.