Hostile Work Environment (Sexual Orientation/Gender) Claims Survive Based on Offensive Comments

In Rosalie v. Supreme Glass Co., Inc., 18-CV-02064, 2020 WL 6263311 (EDNY Oct. 23, 2020), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s sexual orientation-based hostile work environment claims under Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law.

The court outlined the elements of such a claim:

To survive summary judgment, a plaintiff asserting a Title VII hostile work environment claim must show (1) he ‘subjectively perceive[d] the environment to be abusive; (2) the conduct alleged objectively created ‘an environment that a reasonable person would find hostile or abusive;’ and (3) that the work environment [was] abusive to employees because of their race, gender, religion, or national origin.

After elaborating on these elements, the court proceeded to apply the law to the facts. As to the element of “objectively severe or pervasive conduct,” the court explained:

Supreme’s principal argument is simple: the conduct at issue was not objectively severe or pervasive. Supreme insists that the only potentially hostile comments are Miranda’s, which Rosalie has misconstrued and are too “isolated” to be actionable. (See ECF No. 26, “Br.” at 11). A reasonable jury might disagree.

If a jury credited Rosalie’s testimony, it could find that Miranda told him that being gay is a “mental” and “genetic disorder,” that she ridiculed him for playing the “victim card,” and purposefully misidentified his gender. Miranda made these comments while routinely demeaning or humiliating him in front of others. Meanwhile, Eschelbacher—Supreme’s President—made “jokes” at Rosalie’s expense, including that (1) Rosalie had been to a male customer’s apartment because he was gay (Rosalie Decl. ¶ 135); (2) a UPS deliveryman did not like Rosalie’s “package” (Id. ¶ 142); (3) a gay vendor was “one of [Rosalie’s] people” (Id. ¶ 140); and (4) Rosalie’s favorite streets were “Christopher and Gay,” (Id. ¶ 126). These comments occurred in an office where a coworker allegedly threatened to punch Rosalie and was rumored to call him “that f**got.” Another employee allegedly called Rosalie, “Woody Woodpecker,” because gay men “like to peck wood.” (Rosalie Decl. ¶ 97). Supreme denies most of these facts and minimizes others, creating genuine issues of material fact as to whether the conduct was severe or pervasive.

*5 While it is true that Title VII is not a general civility code, “the fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious of cases.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (quoting Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997)). This certainly is not an “egregious” case, but Rosalie presents enough issues of material fact to survive summary judgment.3 As the Second Circuit has noted, “the line between boorish and inappropriate behavior and actionable [ ] harassment … is admittedly indistinct, [and] its haziness counsels against summary judgment.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 605 (2d Cir. 2006).

Next, in finding that there was sufficient evidence that the discrimination was “because of” plaintiff’s protected class, the court explained:

Supreme also urges that the alleged harassment did not occur “because of” Rosalie’s sexual orientation or gender. (Br. 12). Instead, it describes the conduct as “harsh” and “bullish” behavior attributable to Eschelbacher’s aggressive leadership. That behavioral mischaracterization ignores the tenor of the offensive comments at issue, which are sex based on their face. In fact, Eschelbacher himself admits that Miranda’s April 14 comment “[i]n and of itself” is “derogatory.” (Eschelbacher Dep. 173:14-15). Thus, a reasonable jury could infer that Rosalie was subject to a hostile work environment because of his sexual orientation and gender.

The court then found that there was sufficient evidence that defendant was vicariously liable for such conduct. It pointed to, inter alia, evidence “that (1) Supreme did not have an anti-discrimination policy at the time Rosalie was an employee; (2) Supreme had an anti-discrimination policy but did not make it known to its employees; or (3) Supreme had an anti-discrimination policy in place but did not enforce it.”

Finally, having found that plaintiff presented sufficient evidence to overcome summary judgment on his claim under Title VII, it necessarily reached the same result on plaintiff’s claim under the “broader and more permissive” New York City Human Rights Law.

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