Court Discusses “Aggregation” Approach to Hostile Work Environment

In Daniel v. T&M Protection Resources LLC, 13-cv-43842018 WL 3388295 (S.D.N.Y. July 12, 2018), the court addressed what it characterized as “a threshold legal question,” namely, “whether a plaintiff may aggregate evidence of racial and sexual harassment to support a hostile work environment claim where neither charge could survive on its own.”

On this issue, the court observed:

That question is—explicitly—an open one in this Circuit. … It is, however, settled law that “different forms of harassment may exacerbate each other,” Donahue v. Asia TV USA Ltd., 208 F. Supp. 3d 505, 517 (S.D.N.Y. 2016) (citing Cruz, 202 F.3d at 570), “meaning that ‘abuse against various different groups—such as both [gender] and [race]— … exacerbates the effect of harassment experienced [with respect to each characteristic] individually,’ ” Duarte, 265 F. Supp. 3d at 348–9 (quoting Boggs v. Die Fliedermaus, LLP, 286 F. Supp. 2d 291, 298 (S.D.N.Y. 2003)); see also Cruz, 202 F.3d at 572 (“Given the evidence of both race-based and sex-based hostility, a jury could find that [defendant’s] racial harassment exacerbated the effects of his sexually threatening behavior and vice versa.”). Some district courts in this Circuit have held, however, that “aggregation is inappropriate where … the claim sought to be buttressed is patently inadequate.

The court found it unnecessary to address the issue head-on, however, noting that in its decision remanding the case to this court, the Second Circuit instructed that the “evidence that [plaintiff] was harassed on multiple fronts  – because of his race, sex, and national origin – should also be considered when evaluating [his] work environment as a whole” and “further noted that, when [r]eviewed 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 [of the Civil Rights Act of 1964].” (Emphasis added by court.)

Unfortunately for plaintiff, the court – upon applying the law – held that “even viewing the conduct found holistically, the facts the Court has found established by a preponderance of the evidence do not support a claim for a hostile work environment as measured by governing case law.” It then explained why.[1]The reader is respectfully directed to the court’s opinion for this discussion.

1 The reader is respectfully directed to the court’s opinion for this discussion.
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