In Desouza v. Office of Children and Family Services, 2019 WL 2477796 (E.D.N.Y. June 12, 2019), the court clarified differences between/among the various theories available to a plaintiff in a gender discrimination/sexual harassment case.
It explained (paragraphing altered):
Though claims challenging disparate treatment, quid pro quo sexual harassment, and hostile work environment are all claims of gender discrimination, they are distinct causes of action governed by different analytical standards. For example, to state a claim of gender discrimination based on quid pro quo sexual harassment, a plaintiff must allege that her employer took “a tangible employment action” because of her “refusal to submit to a supervisor’s sexual demands.” Mormol v. Costco Wholesale Corp., 364 F.3d 54, 57 (2d Cir. 2004) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753–54 (1998)). And to state a claim for a hostile work environment,
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. … On the other hand, a gender discrimination claim based on disparate treatment requires a plaintiff to plead facts that would tend to show “that the defendant had a discriminatory intent or motive for taking a job-related action.” Brennan, 650 F.3d at 90 (quoting Ricci v. DeStefano, 557 U.S. 557, 577 (2009)). The differing analytical standards governing each theory of gender discrimination mean that allegations sufficient to establish one claim, e.g., disparate treatment, do not necessarily support an action based on another claim, e.g., hostile work environment.
Here, the court found that plaintiff “improperly conflated the cause of action for hostile work environment with a cause of action for disparate treatment,” noting that “[w]hereas hostile work environment claims consider the ‘workplace environment as a whole,’ disparate treatment claims require a tangible, ‘discrete harm such as hiring or discharge.’”
Applying the law, the court held:
Plaintiff has not alleged facts sufficient to establish the elements of a claim of gender discrimination based on disparate treatment. Though Plaintiff has adequately pleaded that Defendants created and maintained a hostile work environment, that is not an adverse action for the purpose of pleading the elements of a disparate treatment claim. See Saliga v. Chemtura Corp., No. 12-CV-832 (VAB), 2015 WL 5822589, at *7 (D. Conn. Oct. 1, 2015) (“[I]n the context of disparate treatment claims, the creation of a hostile work environment cannot constitute an adverse employment action for purposes of establishing a prima facie case of discrimination.” (citing Parra, 48 F. Supp. 3d at 553)); cf. Nichols v. Truscott, 424 F. Supp. 2d 124, 139 (D.D.C. 2006) (finding that although a Title VII claim involved “abuse at the hands of [the plaintiff’s] co-workers (coupled with her employer’s failure to stop the harassment),” it did “not [involve] an adverse action by her employer”). Furthermore, while Plaintiff’s termination on June 12, 2017 obviously qualifies as an adverse employment action, Plaintiff has alleged that she was terminated “in retaliation for her complaints of unlawful sexual harassment”—not that she was terminated because of her gender. (SAC, Dkt. 16, ¶ 59.) Because the SAC contains no plausible allegations that any Defendant took an adverse employment action against Plaintiff under circumstances that suggest the action was taken because of Plaintiff’s gender, Plaintiff cannot maintain a claim of disparate treatment against Defendants. Accordingly, Plaintiff’s third cause of action is dismissed.