In Davis v. Cape May Prosecutor’s Office, Civ. No. 1:22-cv-00783-NLH-EAP, 2023 WL 1883327 (D.N.J. Feb. 10, 2023), the court, inter alia, denied defendant’s motion to dismiss plaintiffs’ sex-based hostile work environment claims asserted under Title VII of the Civil Rights Act of 1964.
In stating the “black letter” law applicable to such claims, the court underscored a crucial, often overlooked point; namely, that the correct legal standard for assessing whether the alleged wrongful conduct constitutes an actionable hostile work environment claim is “severe or pervasive,” not “severe and pervasive.”
That is:
Severity and pervasiveness are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the workplace only if it is pervasive. This analysis requires looking at the totality of the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. [Internal quotation marks omitted.]
Applying the law to the facts, the court explained:
Davis alleges pervasive conduct demonstrating a hostile work environment. Reading the complaint in the light most favorable to the Plaintiffs, we note that Davis has alleged that women are called bitches on an everyday basis through the present. Assuming this is true, this is pervasive behavior. These allegations are bolstered also by allegations of supervisors claiming to hate women in law enforcement.
Similarly, Gannon also alleges hearing of comments that Defendant Vivarina hates women in law enforcement. In addition, Gannon alleges “many occasions” of lewd jokes and criticism of women’s abilities. She alleges that she has endured such comments for years. While Gannon only provides one discrete example of this conduct, her allegations on their face aver continued and pervasive conduct.
Based on this, the court concluded that since plaintiffs alleged “pervasive comments against women, gendered derogatory language, and lewd comments, they will be permitted to proceed on their sex-based hostile work environment claim.”