In Rice v. Smithtown Volkswagen, 2018 WL 3848923 (E.D.N.Y. Aug. 13, 2018), the court held that plaintiff sufficiently pleaded claims for “quid pro quo” sexual harassment, hostile work environment sexual harassment, and retaliation under Title VII of the Civil Rights Act of 1964. (In this post I will discuss the court’s assessment of plaintiff’s “hostile work environment” sexual harassment claim.)
In sum, plaintiff alleged that he endured sexual harassment – including by receiving sexually explicit photographs and sexual solicitations from defendant’s owner – and then terminated after he turned down these advances.
The court summarized the law, including the standard for properly pleading a hostile work environment claim:
“To state a claim for a hostile work environment in violation of Title VII, a plaintiff must plead facts that would tend to show that the complained of conduct: (1) ‘is objectively severe or pervasive—that is, … creates an environment that a reasonable person would find hostile or abusive’; (2) creates an environment ‘that the plaintiff subjectively perceives as hostile or abusive’; and (3) ‘creates such an environment because of the plaintiff’s sex.’ ” Patane, 508 F.3d at 113 (quoting Gregory v. Daly, 243 F.3d 687, 691–92 (2d Cir. 2001) ). These three elements are termed, respectively, the objective, subjective, and prohibited causal factor requirements. Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).
To show that conduct was objectively severe or pervasive, a plaintiff “must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of [his] working environment.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002); Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). In making a determination as to the objective severity or pervasiveness of challenged conduct, courts consider “the totality of the circumstances, including ‘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.’ ” Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir. 2015) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ).
“However, a plaintiff need not prove all of these elements at the pleading stage.” Falcon v. City Univ. of New York, 263 F.Supp.3d 416, 430 (E.D.N.Y. 2017) (Spatt, J.). “Ultimately, to avoid dismissal under FRCP 12(b)(6), a plaintiff need only plead facts sufficient to support the conclusion that [ ]he was faced with ‘harassment … of such quality or quantity that a reasonable employee would find the conditions of [his] employment altered for the worse.’ ” Patane, 508 F.3d at 113 (quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) ). The Second Circuit has “repeatedly cautioned against setting the bar too high” for defeating a motion to dismiss.