In a recent opinion (Desardouin v. City of Rochester, No. 12-187-cv (2nd Cir. Feb. 19, 2013)), the Second Circuit reversed a summary judgment for defendant and upheld plaintiff Jewanta Desardouin’s hostile work environment claim.
It held that even though her case was not an “obvious” one of hostile work environment, plaintiff’s “allegations of repeated solicitation of sexual relations in a vulgar and humiliating manner suffice to warrant a trial”. (The lower court’s opinion is here, and the Second Circuit’s summary order affirming the dismissal of the remaining plaintiffs’ claims, including those of Jewanta’s husband, is here.)
The court began by outlining the law in this area:
Title VII prohibits an employer from discriminating on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). A hostile work environment claim requires a plaintiff to show that a workplace is “so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered.” Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002) (citations omitted). The plaintiff must also show “either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal quotation marks omitted). If a plaintiff relies on a series of incidents, they must be “more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (internal quotation marks omitted). In determining whether the threshold has been met, relevant factors include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The plaintiff must also subjectively perceive the environment to be abusive. Id. at 22-23. Finally, “it is `axiomatic’ that in order to establish a sex-based hostile work environment under Title VII, a plaintiff must demonstrate that the conduct occurred because of her sex.”
This standard, which has become known as the “severe or pervasive” test, is often the dividing line between claims that survive summary judgment, and those that don’t (at least under Title VII and the New York State Human Rights Law).
Here, plaintiff met this standard:
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.
Plaintiff’s retaliation claims, however, were properly rejected by the lower court. Defendant sufficiently established that it fired plaintiff for a legitimate, non-discriminatory reason – namely, because she engaged in “secret recordings of conversations of police officials” (a felony and violation of departmental policy).