In Carrillo v. Empire Hotel Services LLC d/b/a Canopy by Hilton Jersey City Arts District et al, No. 2:22-CV-03273, 2023 WL 3993767 (D.N.J. June 14, 2023), the court denied defendant’s motion to dismiss plaintiff’s claims of hostile work environment sexual harassment asserted under Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination.
From the decision:
As an initial matter, for hostile work environment claims, “the harassing conduct need not be sexual in nature; rather, its defining characteristic is that the harassment occurs because of the victim’s sex.” Lehmann, 626 A.2d at 453. As such, Defendants’ argument that comments must contain explicit sexual innuendo to be considered in support of a hostile work environment claim, Mov. Br. 4, is of no moment. However, despite Defendants’ assertions, Carrillo’s allegations that Foster used the term “bitch” to describe her, commented on Carrillo’s body and appearance, commented on whether women wear clothes in the shower, approached Carrillo from behind, and inserted himself into small spaces with Carrillo, are sexual or sexist in nature. As such, Carrillo has pleaded facts to satisfy the first element of a hostile work environment claim: that she was harassed “because of [her] sex.” Moody, 870 F.3d at 214 (comments about plaintiff’s body establish that harassment occurred because of her sex); Lehmann, 626 A.2d at 454 (“When the harassing conduct is sexual or sexist in nature, the but-for element will automatically be satisfied. Thus when a plaintiff alleges that she has been subjected to sexual touchings or comments … she has established that the harassment occurred because of her sex.”).
Carrillo also sufficiently alleges that the discrimination was pervasive. Carrillo claims that Foster was “sexually inappropriate with Plaintiff almost immediately after she started,” that the harassment occurred “regularly,” and that the harassment persisted even after she asked Foster to stop. Compl. ¶¶ 18, 19, 27-28. The large number of specific comments alleged within the short timeframe of Carrillo’s employment also suggests pervasiveness. Compl. ¶¶ 19, 20, 23, 25, 26.
Further, Carrillo alleges facts suggesting that Foster’s conduct not only detrimentally affected her, but would also detrimentally affect a reasonable person in like circumstances. Carrillo states that Foster’s comments on her body made her feel objectified and humiliated, Compl. ¶ 26, and that he made her feel trapped and at risk of being groped when he inserted himself into small spaces while she was working in them, Compl. ¶ 22. A reasonable person could also find that Foster’s comments on Carrillo’s body and his reference to her as a “bitch” were humiliating and offensive, respectively, and that his conduct was physically threatening to the extent he inserted himself into small spaces where she was working. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (factors to consider when reviewing the circumstances for a hostile work environment claim 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).
The court also held that plaintiff sufficiently alleged “quid pro quo” sexual harassment
Foster is alleged to have made sexual advances towards Carrillo by, among other things, commenting on her body and appearance, approaching her from behind, and inserting himself into small spaces where she was working. Carrillo then rejected the unwanted advances by asking Foster to stop and by reporting the conduct to Empire’s Human Resources department. Carrillo then pleads that her rejection of Foster’s advances was used as the basis for her termination less than a month later.
Finally, the court held that plaintiff sufficiently alleged retaliation, noting, among other things, the close temporal proximity (one month) between plaintiff’s complaint to HR and her termination.