In Malone v. TDMW Management Inc., No. 5:21-cv-180, 2022 WL 507436 (N.D.Ala. Feb. 18, 2022), the court, inter alia, held that plaintiff did not state a plausible sexual harassment (hostile work environment) claim under Title VII of the Civil Rights Act of 1964, and therefore denied plaintiff’s motion for a default judgment as to this claim.
Among other things, plaintiff alleges that he received a sexually-explicit text message from a male co-worker, which his manager “laughed off,” stating that the sender “had only been joking around.”
This case is illustrative of how courts assess the “severe or pervasive” standard which, while easily stated, is often challenging to apply.
The court explained the “black letter” law, and proceeded to apply it to the facts, as follows:
To establish sexual discrimination claim based on a theory of hostile work environment, a plaintiff must show in part that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment. Whether harassment is “severe” or “pervasive” turns on the totality of the circumstances, but four factors are particularly relevant: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.
In this case, the totality of the factors and circumstances weigh against Malone. For starters, Malone points to just three instances of harassment between summer 2019 and October 2019. This does not constitute “frequent” harassment.
What’s more, Malone does not allege that he suffered physical or threatening harassment. Nor does he allege that the harassment he faced negatively impacted his job performance. Accordingly, under the totality of the factors and circumstances, Malone fails to plausibly establish that the harassment was sufficiently severe or pervasive to alter the terms and conditions of his employment and create a discriminatorily abusive working environment.
[Cleaned up; citations omitted.]
That said, it is important to understand that while the court noted that the frequency of alleged harassment in this case was insufficient to state a claim of hostile work environment sexual harassment in this case, courts – including the U.S. Court of Appeals for the Second Circuit here in New York – have held that “[t]here is neither a threshold magic number of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim.” Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000).
It is therefore possible that the same number of alleged instances of harassment, over the same general time period, might give rise to a plausible claim under a different set of facts (i.e., a qualitatively different “totality of the factors and circumstances”).