Sexual Harassment Claim Dismissal Affirmed; Touching Not Shown to be “Because of” Plaintiff’s Sex

In Collymore v. City of New York et al, 18-2099 (2d Cir. April 11, 2019) (Summary Order), the U.S. Court of Appeals for the Second Circuit, inter alia, affirmed the dismissal of plaintiff’s sexual harassment claim under Title VII of the Civil Rights Act of 1964.

The court wrote:

Collymore alleges that Lisa Maluf, her indirect supervisor, sexually harassed her by inappropriately touching her, but Collymore has failed to plausibly allege that her sex was a
“substantial or motivating factor contributing to” Maluf’s decision to inappropriately touch her Id. at 85 (internal quotation marks omitted). Collymore does not make any allegations regarding Maluf’s motivation for inappropriately touching her, and her allegation that “Maluf regularly
touched others the same way” indicates that Maluf’s harassment was not motivated by Collymore’s sex. App’x at 20. Collymore has therefore failed to allege that Maluf’s unwanted touching was because of Collymore’s sex[.]

This decision illustrates, once again, that in order for discrimination – including sexual harassment – to be unlawful, it must (among other things) be “because of” the protected characteristic – here, sex.