A recent Second Circuit case, Boyar v. Janet L. Yellen, Secretary of the Department of the Treasury, Internal Revenue Service, 2022 WL 120356 (2d Cir. Jan. 13, 2022), illustrates a key point in employment discrimination law: namely, that a “work environment” that is or may be “hostile” in the ordinary, dictionary sense is not necessarily a “hostile work environment” within the meaning of the law.
Specifically, after explaining its decision to affirm the dismissal of plaintiff’s disparate treatment claim, the court turned to its analysis of plaintiff’s hostile work environment claim.
In addition, the district court properly dismissed Boyar’s hostile work environment claims. To state a hostile work environment claim, “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 [protected class].” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation marks omitted) (describing standard under Title VII for sex-based hostile work environment claim); Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 241 (2d Cir. 2007) (describing standard under the ADEA for age-based hostile work environment claim).
Boyar’s factual allegations are not sufficient to state a plausible hostile work environment claim. He alleged that his supervisor (1) told him to go back to his desk or she would “[w]ring [his] neck”; (2) yelled at him demanding his employee identification number “now”; (3) ignored him at a meeting; (4) yelled at him “very loudly”; and (5) told him he had 90 minutes to complete two certification exams, when he had 60 minutes to complete each. Gov’t App’x at 9. Whether viewed alone or in the aggregate, these incidents were not severe or pervasive enough to establish an objectively hostile work environment. See Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 102 (2d Cir. 2020) (“Title VII is not a general civility code but rather forbids only behavior so objectively offensive as to alter the conditions of the victim’s employment.” (internal quotation marks omitted)); Littlejohn v. City of New York, 795 F.3d 297, 320–21 (2d Cir. 2015) (“To establish a hostile work environment … a plaintiff must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” (internal quotation marks omitted)). Moreover, Boyar did not allege any facts at all that would support the inference that the behavior he complains of was because of his age, sex, religion, or national origin. See Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999) (“A plaintiff must … demonstrate that [he or] she was subjected to the hostility because of … membership in a protected class.”).
Accordingly, plaintiff’s claims were doomed for these two reasons: (1) lack of severity or pervasiveness, and (2) lack of a connection between the alleged hostility and plaintiff’s membership in a protected class.