Secondhand “Incendiary” Comments Regarding Sexual Orientation Sufficient to State Hostile Work Environment Claim

One way to prove discrimination is by introducing evidence of negative comments pertaining to the plaintiff’s protected class or about others in the plaintiff’s protected class. But what if some, or all, of the derogatory comments are not directly perceived by the harassment victim?

That is one of the issues addressed by the Southern District of New York in Sletten v. LiquidHub, Inc., No. 13-CV-1146, 2014 WL 3388866 (SDNY July 11, 2014). There, the court discussed how second-hand – as opposed to direct – derogatory comments can be used to establish an actionable hostile work environment.

Plaintiff alleged that defendants engaged in unlawful treatment on account of his gender and sexual orientation in violation of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).

Defendants moved to dismiss plaintiff’s claims under FRCP 12(b)(6) for failure to state a claim. The court denied some, but granted other, aspects of their motion. In this post I’ll focus on the court’s treatment of plaintiff’s hostile work environment claims.

Here are the facts/allegations, as summarized by the court:

[P]laintiff has complained of only a few statements that he heard directly. First, three coworkers, including LiquidHub’s CEO, asked him whether he was married. Second, there is the incident when McDermott, Brassington, and Murray asked plaintiff if he was dating and if he had a girlfriend; when Sletten responded that he had a dinner date that night with a female friend, they allegedly said, “Oh it’s a big date, huh? . . . Your [sic] friends with a girl?!” The third and final direct statement was when Brassington asked plaintiff, “What does D&G stand for?” in reference to plaintiff’s belt buckle. After plaintiff responded by telling him it was the designer Dolce & Gabbana, the CEO then stated, “Well you are a fancy guy, aren’t you?”

Plaintiff supplements these statements with a host of comments of which he learned secondhand. These comments include those from McDermott that plaintiff “dresses too good for a straight guy”; his claim that “I don’t mind gay people but others in the firm don’t like fags”; his belief that “things are going to change now that they know [Plaintiff] is gay back in Pennsylvania”; and “I wonder what Plaintiff’s sexual role is?” Additionally, Sletten alleges that non-party coworker Rompala called him a “faggot” and commented that “Brassington is going to just love knowing that he hired a faggot.” The extent of the behind-the-back commentary is unknown, but it did reach levels such that Lam told plaintiff on two occasions that his sexual orientation was the subject of negative conversation.

The court recognized that while secondhand comments “should not be ignored” and that “learning second-hand of a … derogatory comment or joke by a fellow employee or supervisor can also impact the work environment”, under the relevant case law “secondhand comments are not as impactful on one’s environment as are direct statements” and therefore “they are less persuasive in stating a hostile work environment claim.”

The court’s analysis is instructive, because it highlights the crucial differences between the State and City Human Rights Laws.

The court initially held that plaintiff failed to state a claim under the NYSHRL:

It is true that the amended complaint describes instances when LiquidHub employees spoke directly to plaintiff and plaintiff was offended. However, the direct comments of which Sletten complains are fundamentally inoffensive. There is nothing in these remarks that “conveys anything but curiosity about a co-worker, and such quotidian workplace interactions are not tantamount to discrimination. Thus, the direct statements are insufficient, and plaintiff’s entire hostile work environment claim is based on the secondhand statements listed above. At least some of these comments are offensive, both subjectively and objectively, but we find that their indirect nature prevents them, standing alone, from being sufficient to constitute the “severe and pervasive” harassment that is required as a matter of state law.

It reached the opposite conclusion, however, regarding plaintiff’s hostile work environment claim under the NYCHRL:

Although Sletten has failed to state a claim under the NYSHRL, we must analyze his NYCHRL claim independently. The city statute is more plaintiff-friendly than the NYSHRL-it asks simply whether plaintiff was “treated less well than other employees” because of his protected status. Because the NYCHRL is construed “more liberally” that its state counterpart, a defendant might be liable under [the] NYCHRL but not under state or federal statutes. This is not to suggest that plaintiff’s burden in pleading a hostile work environment claim under the NYCHRL is trivial. [T]he NYCHRL is not a ‘general civility code,’ and when the conduct alleged is far from a borderline violation of state law, then the plaintiff has failed to state a claim under the NYCHRL as well.

In this case, plaintiff learned that, beginning in April 2012, his sexual orientation was being negatively discussed by his coworkers and supervisors. Even though Sletten did not hear the antagonistic comments directly, the fact that his colleagues repeatedly mocked his sexual orientation behind his back and that plaintiff learned about this behavior adversely impacted his work environment and meant that he was treated less well than other employees based on his sexual orientation. …  The comments complained of by plaintiff constitute more than “petty slights or trivial inconveniences,” for they plausibly created an environment in which Sletten experienced “differential treatment” on account of his sexual orientation. Accordingly, defendants’ motion to dismiss plaintiff’s hostile work environment claim under the NYCHRL is denied.

The court cited its recent decision in Garrigan v. Ruby Tuesday as an example of a case holding that plaintiff “pled a hostile work environment claim under the NYCHRL, even where federal claims had been dismissed, when the complaint alleged that the defendant treated Plaintiff less well by spreading rumors about her at work.”

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