“Vulgar” Conduct Not “Bad Enough” to Make Out Hostile Work Environment Sexual Harassment Claim

In Alexander v. Program Development Services, Inc., 18-cv-1433, 2019 WL 2436436 (EDNY June 10, 2019), the court, inter alia, dismissed plaintiff’s hostile work environment sexual harassment claim under Title VII of the Civil Rights Act of 1964.

From the decision (paragraphing altered):

Plaintiff’s hostile work environment claim based on Fiddler’s sexually explicit and profane conduct fails because this conduct does not amount to a hostile work environment. As an initial matter, plaintiff’s deposition testimony establishes that he did not find Fiddler’s conduct personally offensive. But even if he did, and even assuming that objectively Fiddler’s conduct was hostile, these two incidents are isolated and episodic, which is not enough to establish a hostile work environment under Title VII. “Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness.” Alfano, 294 F.3d at 374. None of the incidents that plaintiff points to are serious. The “photo session” was not intended to be seen by other employees, and Fiddler and Miller stopped taking pictures and left when they realized that plaintiff was also in the room and could see what they were doing. Fiddler’s repeated use of profanity when she is frustrated is not the type of conduct that creates a hostile work environment as envisioned under Title VII. And Fiddler’s sexually explicit comment that she made to plaintiff as she was leaving her employment at PDS does not rise to the level of a comment that alters the nature of plaintiff’s work environment. In other words, even though this conduct is vulgar, it is nowhere near bad enough or pervasive enough to withstand summary judgment. Thus, plaintiff’s claim for a hostile work environment under Title VII is dismissed.

This case is another example confirming that the anti-discrimination laws are not a civility code for the American workplace.