“Second-Hand” Harassment

Workplace harassment occurs in a variety of forms and contexts; it is impossible to identify all of the factual permutations that might give rise to an actionable employment discrimination/hostile work environment claim.

One form in which harassment, or “hostile work environment”, claims arise is when the victim/plaintiff is directly targeted – e.g., misogynistic or racial comments made directly to them.

But what if the harassment is indirect – e.g., someone hears, second-hand, that someone made an inappropriate comment about them (or women in general)? Can that give rise to an actionable hostile work environment claim?

It depends.

For example, in Ward v. Shaddock, 2016 WL 4371752 (S.D.N.Y. 2016), the court explained:[1]As with many quotations/text pulled from decision on this blog, citations are omitted and formatting has been modified for clarity/readability.

While Defendants argue that there is no allegation that any of the alleged epithets or jokes occurred in Plaintiffs’ presence or that any of it was directed to them personally, the mere fact that a plaintiff was not present when a racially derogatory comment was made will not render that comment irrelevant to his hostile work environment claim. … Indeed, even if Plaintiffs previously had been unaware of the remarks Shaddock made in the presence of an exclusively white audience, it is plausible that the persistently offensive conduct created an overall hostile or abusive environment, which exacerbated the effect of the harassment Plaintiffs experienced individually.

This makes sense, in light of the “environment” part of the term “hostile work environment.”

As another example, the court in Varughese v. Mount Sinai Medical Center, 2015 WL 1499618 (S.D.N.Y. 2015) explained that “[a] plaintiff need not herself be the target of discriminatory comments in order for those comments to contribute to a hostile work environment; nor does the plaintiff need to hear such comments first-hand.”

In any event, whether particular comments give rise to an actionable “hostile work environment” or disparate treatment discrimination claim – whether those comments are heard first- or second-hand – must be determined on a case-by-case basis, in light of all of the facts and circumstances of the particular case.

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1. As with many quotations/text pulled from decision on this blog, citations are omitted and formatting has been modified for clarity/readability.