In Conlan v. Liberty Mutual Group, Inc. and Charles Bruce Stark, 2024 WL 4792112 (S.D.N.Y. Nov. 13, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s sex-based hostile work environment claim asserted under the New York State Human Rights Law.
The court summarized the facts, in part, as follows:
Shortly after Plaintiff began working with Stark, Plaintiff experienced “frequent unwanted, inappropriate, and flirtatious comments” from Stark. (Id.) These comments then escalated into forcible touching, including grabbing Plaintiff’s genitals on multiple occasions. (Id. at 7.) On one occasion, Stark called Plaintiff into his office, revealed his penis to Plaintiff, and then placed his penis on Plaintiff’s shoulder and face while trying to coerce Plaintiff to perform sexual acts on him. (Id.) Plaintiff refused Stark’s advances. (Id.) As a result, Stark retaliated against Plaintiff by threatening to “make [his] life … as difficult as possible.” (Id. at 8). Stark then took to publicly demeaning Plaintiff and falsely reported that he was “late to work or insubordinate or generally a bad employee.” (Id.) When Plaintiff reported Stark’s behavior to administrators within Liberty Mutual, Plaintiff’s employment was terminated. (Id. at 9) Plaintiff alleges that Liberty Mutual knew of Stark’s behavior and reputation but intentionally disregarded it due to Stark’s “high-level position at the company” and to “protect and shield him and the company.”
In evaluating plaintiff’s hostile work environment claim, the court summarized and applied the law as follows:
A hostile work environment is a workplace that is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To survive a motion to dismiss, a Plaintiff must plausibly “plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive—that is, … creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s sex.” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (citation omitted). A court must look to the totality of the circumstances when reaching a determination, including looking at the frequency of the abuse, the severity of the abuse, and whether it unreasonably interferes with an employee’s work performance.5 See Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir. 2015) (citation omitted). But a single act, if sufficiently severe, can be enough to sustain a claim. Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004).
*5 The Second Circuit has held that direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment. See Redd v. N.Y. Div. of Parole, 678 F.3d 166, 177 (2d Cir. 2012). Several courts in this Circuit have found that intentionally touching or grabbing a co-worker’s genitals or intimate parts was sufficiently severe to state a claim for hostile work environment. See Graham v. Cha Cha Matcha, Inc., No. 23 CIV. 9911 (PAE), 2024 WL 3540324 (S.D.N.Y. July 25, 2024) (finding that allegations that a male defendant forcibly grabbed a male Plaintiff’s buttocks was sufficient to properly state hostile work environment claim); Domingues v. Barton Chevrolet Cadillac, No. 18 Civ. 7772 (PMH), 2021 WL 637016, at *5 (S.D.N.Y. Feb. 17, 2021) (holding that defendant grabbing plaintiff’s breast stated a hostile work environment claim); Wahlstrom v. Metro-N. Commuter R.R. Co., 89 F. Supp. 2d 506, 521 (S.D.N.Y. 2000) (concluding that forcibly hugging and slapping plaintiff’s buttocks stated a hostile work environment claim); Kurlender v. Ironside Grp., Inc., No. 18CV3839JFBAYS, 2019 WL 1317405 (E.D.N.Y. Mar. 22, 2019) (finding that unwanted touching by a male defendant of a male plaintiff was sufficient to withstand a 12(b)(6) motion for a hostile work environment claim). Here, Plaintiff pleads that Stark engaged in various kinds of harassing behavior that escalated over time. Plaintiff alleges that Stark grabbed Plaintiff’s genitals on multiple occasions and then on one occasion exposed his own genitals to Plaintiff and then rubbed them on Plaintiff’s shoulder and face while trying to coerce him into performing sexual acts. (Amend. Compl. at 7.) Taken as true, these allegations go beyond single incidents of forcible touching that other courts have found sufficient to state a claim for hostile work environment. As a result, Plaintiff has plausibly pled facts to establish that the complained of conduct was objectively severe.
The second prong of a hostile work environment is also plausibly pled because the Amended Complaint contains facts that suggest that the Plaintiff perceived the work environment to be abusive. Namely, that Plaintiff was “unable to bear” the abuse and “finally reported Stark’s sexual abuse to administrators at Liberty Mutual in the White Plains Office.” (Amend. Compl. at 9.) The Amended Complaint also contains allegations that the Plaintiff “suffered physical and emotional trauma, … was incapacitated from performing normal tasks, [and] incurred medical expenses.” (Amend. Compl. at 11.) Such allegations have been found sufficient to satisfy this element of hostile work environment. See Banks v. Gen. Motors, LLC, 81 F.4th 242, 268 (2d Cir. 2023) (holding that evidence that Plaintiff sought medical treatment was sufficient to show that they perceived their environment to be hostile). Plaintiff has plausibly pled facts to establish the subjective element of a hostile work environment.
Liberty Mutual argues that Plaintiff’s claim should fail because he does not plead that he is part of a protected class. This is not required. The NYSHRL protects against discrimination because of one’s sex and its text draws no distinction between men or women receiving the benefit of its protection. See N.Y. Exec. Law §§ 290(3), 296(1)(a). The relevant case law tracks this understanding. See Redd, 678 F.3d at 175. The law in our Circuit makes clear that a Plaintiff must only plead that he was discriminated against because of his or her sex and not that he is a member of a protected class. See Patane, 508 F.3d at 113. Further, the Plaintiff has plausibly pled that (1) Stark was sexually attracted to young men; (2) Plaintiff was a young man at the time of the abuse; and (3) that Plaintiff was sexually targeted by Stark. These facts give rise to a plausible inference that Plaintiff was the victim of a hostile work environment because of his sex. See Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). Accordingly, having established all three elements, Plaintiff has plausibly alleged a hostile work environment.
In this Circuit, even if a work environment is found to be abusive, a Plaintiff must also establish that the conduct which created the hostile environment should be imputed to the employer. See Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995). The Second Circuit has derived the rule that “if a plaintiff’s supervisor is the alleged harasser, an employer will be liable if the supervisor uses ‘his actual or apparent authority to further the harassment.’ ” Id. In Tomka, the Second Circuit concluded that a supervisor using his authority to convene a business dinner where a sexual assault occurred was sufficient to establish a nexus between his supervisory authority and the assault. So too here. Plaintiff alleges that Stark, the named partner of the firm where Plaintiff worked and Plaintiff’s direct supervisor, called Plaintiff into his office, presumably by using his supervisory authority, and then revealed his penis to Plaintiff and forcibly rubbed it on Plaintiff’s body and attempted to coerce him into sexual acts. (Amend. Compl. at 7.) Accordingly, Plaintiff has plausibly pled that his supervisor used his authority to further his harassment such that Stark’s conduct could be imputed to Liberty Mutual.
The court further held that, absent any “indication that Liberty Mutual investigated or took corrective action following Plaintiff’s report of Stark’s abuse,” plaintiff stated a claim of aiding and abetting liability against Liberty Mutual.