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Body Double’s Sexual Harassment Claims Survive Dismissal, Not Subject to Arbitration

by mjpospis on October 5, 2018

in Arbitration, Employment Contracts, Employment Discrimination, Employment Law, Pleading, Retaliation, Sexual Harassment

In Alexander v. Possible Productions, Inc., 17-cv-5532, 2018 WL 4804638 (S.D.N.Y. Oct. 4, 2018), the court denied defendants’ motion to dismiss plaintiff’s claims of retaliation and sex-based discrimination/sexual harassment.

In sum, plaintiff – who was employed by Showtime as a body double for the character Alison on the TV show “The Affair” – alleges that she was subjected to sexual harassment by her supervisor (assistant director Travis Rehwaldt) and then terminated for complaining about it. Specifically, plaintiff took issue with how she was identified on a call sheet (being referred to as “Alison sexy time Double”), in that it “reduced her to a sexual object.”

The court initially held that plaintiff’s claims were not subject to arbitration, since the non-discrimination provisions of the Screen Actors Guild Television Agreement exempted discrimination claims from its arbitration provisions.

Next, the court held that plaintiff sufficiently alleged retaliation under Title VII of the Civil Rights Act of 1964:

Six days after she complained to Rehwaldt about what she believed to be an incident of sexual harassment, she received notice that she was no longer needed as a body double on The Affair. Plaintiff alleges that she was given a flimsy explanation for this: she was dismissed because she did not have a good hair color match, despite the fact that she wore wigs during the duration of her role, and her replacement also wore a wig.

The Court need not consider whether the underlying discrimination complained of (the reference on the Call Sheet to “Alison Sexytime Double), standing alone, is enough to state a claim of unlawful discrimination. It is enough for Plaintiff to allege that she was fired in response to her protest to Rehwaldt that the Call Sheet reference was sexual harassment for her to state a claim under Title VII for retaliation.

The court then held that plaintiff sufficiently alleged sex discrimination under the NYC Human Rights Law. En route to its conclusion, the court summarized the law pertaining to claims under that statute, and in particular, its comparably broader standard for liability:

For an employer’s conduct to be actionable as hostile work environment sexual harassment, it must be both objectively and subjectively offensive, such that a reasonable person would find the behavior hostile and abusive, and such that the plaintiff herself did, in fact, perceive it to be so. … If a reasonable person would consider the conduct to consist merely of petty slights and trivial inconveniences, an employer can avoid liability under the NYCHRL. … Courts must consider the totality of the circumstances in determining whether a workplace is hostile or abusive. … Because the NYCHRL is designed to be broadly remedial, liability for sexual harassment under the NYCHRL is determined by the existence of any unequal treatment, and questions of severity and frequency are reserved for the consideration of damages. … But the NYCHRL, like Title VII and the NYSHRL, is still not a general civility code. [P]etty slights and trivial inconveniences are not actionable. … Isolated incidents of unwelcome verbal conduct have been found to constitute the type of petty slights and trivial inconveniences that are not actionable, even under the liberal NYCHRL standard. This Court’s interpretation of the NYCHRL is guided by Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27 (1st Dep’t 2009), which discusses how the NYCHRL was changed by the Local Civil Rights Restoration Act of 2005 (the “Restoration Act”). … The Restoration Act modified the construction provision of the NYCHRL, so that the NYCHRL now explicitly requires an independent liberal construction analysis in all circumstances … targeted to understanding and fulfilling what the statute characterizes as the [NYCHRL’s] uniquely broad and remedial purposes, which go beyond those of counterpart state or federal civil rights laws. … According to Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102 (2d Cir. 2013), to establish a … discrimination claim under the NYCHRL, the plaintiff need only demonstrate by a preponderance of the evidence that she has been treated less well than other employees because of her gender, race, religion, or national origin. … The challenged conduct need not even be tangible (like hiring or firing). … Thus, the NYCHRL is to be construed more broadly than federal civil rights laws and the NYSHRL; its provisions are more remedial than both.

Here, plaintiff met this burden.

Finally, the court held that plaintiff sufficiently alleged retaliation claims under the New York State and City Human Rights Laws. Noting plaintiff’s lower burden under the NYCHRL – i.e., the statute prohibits retaliation “in any manner” and does not require a “materially adverse employment action” – the court concluded: “It is reasonable for the Court to infer a causal connection between Plaintiff’s dismissal and her complaint six days prior, and that Plaintiff’s dismissal was a retaliatory response to her complaint.”

Categories: Arbitration, Employment Contracts, Employment Discrimination, Employment Law, Pleading, Retaliation, Sexual Harassment

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