File this one under “What were they thinking?!?”. When the facts of an employment discrimination case include the terms “Hitler video” and “mandatory conference”, it isn’t difficult to predict how the case is going to turn out.
In Orlando v. BNP Paribas N. Am., Inc., No. 14 CIV. 4102 AJP, 2015 WL 6387531 (S.D.N.Y. Oct. 22, 2015), the court denied defendants’ motion for summary judgment on plaintiff’s claims of (e.g.) hostile work environment (under the NYS and Human Rights Laws) and retaliation.
Plaintiff, who practices Orthodox Judaism, alleged that he was subjected to discrimination and a hostile work environment based on his religion and then retaliated against for complaining about it.
Among other facts in the case:
On July 20, 2011, BNPP’s foreign exchange group held a mandatory off-site training seminar in Amsterdam. At the first session, [defendant Eric] Auld, as Co–Head of the off-site seminar, introduced a video presentation that he partook in creating adapted from the movie “Downfall.” The video portrayed Adolf Hitler as the CEO of a BNPP competitor bank, and Nazi soldiers as competitor bank executives. In the video, which is subtitled, Hitler screams and curses at the soldiers in German. The video included imagery symbolic of the Nazi regime including German army uniforms and swastikas, and referred to the “Third Reich,” “my Fuhrer,” “Goebbels,” and “a large Polish operation.” After watching the video, Orlando told Auld that as a Jew he was “extremely offended” by it. Orlando also told Auld’s deputy, Hubert de Lambilly, that he was deeply offended by the video, and that he had lost his grandfather during World War II and did not think the subject was a laughing matter. De Lambilly recommended that Orlando complain to his management, “i.e., Eric Auld.” De Lambilly also reported Orlando’s complaint to Auld. Nevertheless, the video was shown a second time later in the seminar. Orlando was so distressed after the second screening that he was concerned about working with Auld going forward.
After plaintiff expressed his concerns about the video, defendants reduced his bonus compensation and terminated him.
In denying defendants’ motion for summary judgment on plaintiff’s New York State Human Rights Law claim, the court held that plaintiff “demonstrated that he subjectively perceived that the Hitler video made his work environment hostile”. As to the video’s “severity”, the court cited an internal disciplinary report, which found (among other things):
The content of the video (including the alterations introduced by the subtitles) was not appropriate for use at a business offsite run on behalf of an international bank…. [Banks’] … judgement in proceeding with the video was poor. His assessment that the risk of running such footage was negligible or low clearly failed to take into account the potential for such footage to be interpreted in different ways and to cause offense…. Hitler is considered to be one of the most odious historical figures. For the [disciplinary] Panel there is a clear difference between an individual choosing at their discretion to watch a film about Hitler or YouTube footage of this clip in their own time and being forced to watch it twice as part of an Offsite (where they cannot switch off/leave if it makes them feel uncomfortable). Given the multiracial/ multinational audience at the Offsite (which also, no doubt, represented diverse religious beliefs), the [disciplinary] Panel believes that alluding to such a major world conflict and specifically to the Nazi regime in a corporate context, when it may have represented painful and difficult memories for the members of the audience or their families, clearly was not appropriate…. [T]he [disciplinary] Panel has evidence from several sources that [the video was not universally well received]…. [Banks] did not consider the views of Jewish participants.
The court further explained:
Courts in this Circuit and elsewhere have noted that the Nazi regime and swastika are symbols of hatred capable of arousing fear and intimidation. …
Orlando has presented evidence to demonstrate that at a mandatory work seminar he was made to watch a video that included actors portraying Hitler and soldiers in Nazi uniform including swastika armbands, and various spoken references to the Nazi regime, including the phrases “Third Reich,” “my Fuhrer,” “Goebbels,” and “a large Polish operation.” Orlando additionally presented evidence that the same video was played a second time despite his complaints to management that it offended him as a Jewish person.
Moreover, the Hitler video was not played in a vacuum. Orlando testified at his deposition that his colleagues made a number of anti-Semitic comments during his tenure at BNPP. While defendants correctly assert that claims premised on these remarks are time-barred, Orlando may us[e] the prior [time-barred] acts as background evidence in support of a timely claim of workplace discrimination. Accordingly, the Court finds that Orlando has presented sufficient evidence to allow a reasonable jury to conclude that he was subjected to a hostile work environment because of the two showings of the Hitler video at the mandatory conference.
Since plaintiff demonstrated triable issues with respect to his claim under the New York State Human Rights Law, he has likewise done so under the New York City Human Rights Law.