Same-Sex Sexual Harassment Claim Dismissed

In Nachmany v. FXCM, Inc., 2020 WL 178413, at *6–7 (S.D.N.Y., 2020), the court, inter alia, dismissed plaintiff’s sexual harassment claims. Here, since plaintiff and the alleged harasser are both male, the plaintiff was required to “sufficiently allege claims for same-sex harassment.” In analyzing plaintiff’s claim, the court explained and applied the framework articulated by the Supreme Court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

Applying the law to the facts, the court concluded:

A comparison of Plaintiff’s claims with those examples provided by Oncale demonstrates the weaknesses of the Complaint. While Plaintiff states that he is heterosexual, he makes no reference to the sexual orientation of the Defendants, foreclosing Oncale’s first example. (See Compl. at 46.) See Barrows, 512 F. App’x at 117 (citing Oncale’s first example of claims that could be sufficient, those that “the harasser is homosexual (and, therefore, presumably motivated by sexual desire)”) The Complaint further fails to allege that Plaintiff was “harassed in such sex-specific and derogatory terms by someone of the same gender as to make it clear that” Defendants were “motivated by general hostility to the presence of someone of the same gender; nor does it allege how Defendants “treated members of both sexes in a mixed-sex workplace.’ ” Barrows, 512 F. App’x at 117 (citing Oncale, 523 U.S. at 80-81.) The Complaint does not indicate that men at FXCM were exposed to disadvantageous terms of employment, as compared to women. “The critical issue,” as the Supreme Court has stated, “is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale, 52 U.S at 82 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 25 (1993)). From the allegations in the Complaint, the Court cannot draw an inference that conduct occurred because Plaintiff is male. *7 In response, Plaintiffs repeatedly state that “no female employee” of FXCM was subjected to “similar ridicule” as Plaintiff or to “grotesque visual depictions of sexual acts,” “sexually-explicit language,” or “sexually images.” (Opp. at 10-11) As, Defendants aptly note in their reply brief, however, no such similar comparative allegations actually appear in the Complaint. [Paragraphing altered.]