In Santiago v. Bernard F. Dowd, Inc., 2017 NY Slip Op 30791(U) (NY Sup. Ct. NY Cty. 160442/13, April 18, 2017) (J. Jaffe), the court denied defendant’s motion for summary judgment on plaintiff’s claim of same-sex hostile work environment sexual harassment under the New York City Human Rights Law.
Plaintiff, a funeral director, presented evidence that (inter alia) the employer’s owner, Dowd, would look at the genitalia of male corpses; would ask plaintiff if he was “playing pocket pool” when plaintiff put his hands in his pockets; stared at plaintiff’s crotch; often said the word “penis”; and commented on corpses with large genitalia.
Initially, Judge Jaffe held that, notwithstanding the NYCHRL’s three-year statute of limitations, plaintiff’s allegations predating three years before he filed his complaint in 2013 (some of which extended as far back as 1996) were not time-barred:
Having described a constant, unrelenting, and daily barrage of offensive comments, so frequent as to be “like breathing,” commencing from the beginning of his employment with defendant and lasting until his resignation in November 2012, plaintiff sufficiently alleges a single continuing pattern of conduct.
Turning to the substance of plaintiff’s allegations, the court summarized the legal framework for evaluating sexual harassment claims under the NYC Human Rights Law:
The NYCHRL prohibits discrimination in terms, conditions or privileges of employment on the basis of gender, and provides that a hostile work environment based on such discrimination exists where a plaintiff is treated less well than other employees because of her gender. Upon a determination that a plaintiff was treated less well because of her gender, the relevant question becomes whether a reasonable person would find that the alleged discriminatory conduct constitutes more than “petty slights and trivial inconveniences.” The determination as to whether discriminatory conduct constitutes more than “petty slights and trivial inconveniences” depends on the totality of the circumstances and the overall context in which the conduct occurs.  Some of the factors to be considered 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 effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Only those cases that are “truly insubstantial” fall outside the scope of this standard.
Applying this standard, the court explained why plaintiff’s claims must be heard by a jury, as opposed to being resolved by a judge as a matter of law:
Here, while defendant asserts that Dowd’s comments constitute petty slights and trivial inconveniences, defendant does not address the totality of the circumstances and overall context of Dowd’ s conduct which, notwithstanding the alleged homosexuality or homophobia of either party, resulted in plaintiff’s exposure to a constant barrage of sexual commentary solely referencing male genitalia within the confines of a funeral home. Such comments cannot be found to be truly insubstantial as a matter of law. … That plaintiff suffered no adverse career impact is not dispositive. … Thus, whether Dowd’s conduct constitutes gallows humor and typical locker room banter, or some form of sexual solicitation, is best decided by a jury.
A claim of a hostile work environment based on same-sex gender discrimination is likewise actionable, including claims brought by one male against another[.] … Here, defendant offers no evidence that Dowd directed his comments to [a female co-worker], and even if he had, plaintiff testified that Dowd directed his comments to males only, thereby raising a triable issue.