Sexual Harassment Claim Dismissed; “Crude” Comments Held Insufficient Under State Law

In Ireland v. Rochester Institute of Technology et al, 19-cv-6392, 2019 WL 5538371 (WDNY Oct. 25, 2019), the court, inter alia, dismissed plaintiff’s claim of sexual harassment under the New York State Human Rights Law (NYSHRL).[1]The court dismissed as time barred plaintiff’s sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.

The court  turned to the merits of plaintiff’s NYSHRL claim. It began its analysis by reciting the legal standard for sexual harassment claims (citations & internal quotation marks omitted; paragraphing altered):

Sexual harassment can be direct, via a quid pro quo relationship, or indirect, through the cultivation of a hostile work environment. See Mormol v. Costco Wholesale Corp., 364 F.3d 54, 57 (2d Cir. 2004). Here, Ireland claims the latter, alleging that Slusser’s actions created a hostile work environment for which RIT should be held responsible. To state a hostile work environment claim, “a plaintiff must produce enough evidence to show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Duplan v. City of New York, 888 F.3d 612, 627 (2d Cir. 2018) (brackets omitted). “A plaintiff must show not only that [she] subjectively perceived the environment to be abusive, but also that the environment was objectively hostile and abusive.” Id. The plaintiff must also allege facts demonstrating that the treatment in question “creates such an environment because of [her] sex.” Pryor v. Jaffe & Asher, LLP, 992 F. Supp. 2d 252, 256 (S.D.N.Y. 2014) To determine whether an environment is hostile or abusive, courts look at the “totality of the circumstances” and consider “the quantity, frequency, and severity” of the alleged discriminatory acts. Bass v. World Wrestling Fed’n Entm’t, Inc., 129 F. Supp. 2d 491, 500 (E.D.N.Y. 2001). Typically, the harassment must be “more than isolated or episodic incidents” and instead constitute a “steady barrage” of disparaging incidents. Id. But “even a single act can give rise to a hostile work environment claim” if it “is sufficiently severe to alter the work environment.” Id. After the plaintiff demonstrates a hostile work environment, she “must then show some specific basis for imputing the harassment to the employer.”

Here, plaintiff alleged in her complaint that defendant Kim Slusser:

1. commented on Ireland’s breasts and attire while talking to Ireland’s husband and said: “look at the rack on her!,” ECF No. 1 ¶ 16;

2. said that if she had Ireland’s husband “she would want him in a pair of silk boxers waiting with a glass of wine for her every night when she got home,” id. ¶ 17;

3. grabbed Ireland’s husband’s butt and said: “now there’s an ass!,” id. ¶ 18;

4. introduced Ireland to staff and donors and said: “look what we also get along with her,” in reference to Ireland’s husband, id. ¶ 19;

5. said another employee “really just needed to get laid,” id. ¶ 20; and

6. told employees that she wanted Ireland’s boobs and husband in bed, id. ¶ 21.

Viewing these allegations through the lens of the appropriate legal standard, the court held:

At most, these comments are crude and isolated, and “isolated incidents of offensive conduct (unless extremely serious) will not support a claim of discriminatory harassment.” Salas v. N.Y.C. Dep’t of Investigation, 298 F. Supp. 3d 676, 683 (S.D.N.Y. 2018).

The first and sixth comments about Ireland’s body are certainly offensive, but they do not support an inference that Ireland’s workplace was permeated with discriminatory ridicule that was sufficiently severe or pervasive. Many of the other comments are innocuous (such as “look what we also get along with her”), directed at others (like Ireland’s husband), or do not relate to Ireland’s gender (such as comments about Ireland’s husband in silk boxers or another employee needing to get laid).

Ireland’s Complaint contains other conclusory allegations that Slusser harassed her “throughout the course of her employment” and “on several occasions” made “sexually suggestive comments” without specifying when or how often such instances occurred or the nature of what was said. See ECF No. 1 ¶¶ 14-17, 19-21. Vague allegations like these are insufficient to state a claim, “because the precise frequency of such comments is of great importance in analyzing a hostile work environment claim.”

It should be noted that the court did not analyze plaintiff’s claim under the comparatively broader New York City Human Rights Law.

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1. The court dismissed as time barred plaintiff’s sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.