In Daniel v. T & M Protection Resources, LLC, No. 15-560-CV, 2017 WL 1476598 (2d Cir. Apr. 25, 2017) (Summary Order), the court vacated the district court’s summary judgment in favor of plaintiff on plaintiff’s hostile work environment claim. (The court issued its ruling one week after it heard oral argument in the case.)
While it is only a non-precedential Summary Order, the Second Circuit’s ruling teaches that hostile work environment claims must be evaluated by reference to all of the circumstances, rather than rigid, mechanical rules.
First, the court considered “whether … the one-time use of the slur ‘nigger’ from a supervisor to a subordinate can, by itself, support a hostile work environment claim.” The district court, relying on Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997), held that it could not. The Second Circuit disagreed:
We must disagree with the district court’s assessment of Schwapp. Schwapp states that, [f]or racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that[,] instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments. Thus, whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs, considered cumulatively in order to obtain a realistic view of the work environment. Schwapp, therefore, did not foreclose the possibility that the one-time use of a severe racial slur could, by itself, support a hostile work environment claim when evaluated in the cumulative reality of the work environment. The district court’s reading of Schwapp is further at variance with this Court’s more recent observation, in dicta, that perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates. Therefore, although we decline to confront the issue of whether the one-time use of the slur “nigger” by a supervisor to a subordinate can, by itself, support a claim for a hostile work environment, we conclude that the district court improperly relied on our precedents when it rejected this possibility as a matter of law. [Emphasis added]
Turning to plaintiff’s allegations of (same-sex) sexual harassment, the court held that plaintiff’s claims were cognizable under Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998):
[T]he district court properly construed as sexual harassment the alleged incident when Daniel’s supervisor brushed his genitalia against Daniel’s buttocks. … Furthermore, Daniel’s claims that his supervisor frequently called him a “homo” and told him to “Man up, be a man,” can be properly construed as harassment because of Daniel’s failure to conform to gender stereotypes.
It held, however, that the district court erred “by failing to include in its analysis some of the complained-of facially neutral incidents of harassment.” It explained:
First, with respect to Daniel’s racial harassment claim, Daniel’s supervisor’s inquiry as to whether Daniel stole a computer—combined with the supervisor’s overtly racist remarks—should not have been ignored by the district court. Because “some evidentiary basis” existed for inferring that this “neutral” incident was animated by hostility because of Daniel’s race, it should have been considered as part of Daniel’s racial harassment claim. See id. at 548-49. Second, with respect to Daniel’s sexual harassment claim, the district court failed to consider Daniel’s testimony that his supervisor repeatedly watched him nap and change his clothes as evidence of additional incidents of sexual discrimination and harassment. This evidence should have been included in the district court’s analysis because of the overt sexual harassment Daniel experienced from his supervisor. See id. Instead, the district court improperly credited T&M’s argument that the supervisor had a neutral motive for watching Daniel, instead of drawing an inference in Daniel’s favor as the district court must on a motion for summary judgment.
Finally, the court held that “the district court erred by determining that, as a matter of law, Daniel failed to allege incidents of harassment sufficient to support a hostile work environment claim” and by failing to properly apply the hostile work environment factors articulated by the Supreme Court in Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).
In Harris, the Supreme Court held in that “courts may determine whether an environment is hostile or abusive … only by looking at all the circumstances of the work environment, which 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.”
Under that standard, plaintiff’s claims should not have been dismissed on summary judgment:
Here, Daniel alleged approximately twenty discrete incidents of harassment during his 15-month employment, and at least two incidents strike this Court as severe (being called a “nigger” by his supervisor, and his supervisor brushing his genitalia against Daniel’s buttocks). In addition, the sexual harassment Daniel faced could be perceived as threatening. Finally, although Daniel missed only one day of work because of the harassment he experienced, no single factor is required in order for a hostile work environment claim to survive summary judgment.
In sum, Daniel presents a persistent pattern of harassment that began as soon as he was hired by T&M and continued until his termination. The evidence that Daniel was harassed on multiple fronts—because of his race, sex, and national origin—should also be considered when evaluating Daniel’s work environment as a whole. … Reviewed in the aggregate, the harassment Daniel allegedly experienced could be found to “alter the conditions of [his] employment and create an abusive work environment” in violation of Title VII.