In Goldberg v. Bespoke Real Estate LLC, et al, 23-CV-5614 (JPO), 2024 WL 1256006 (S.D.N.Y. March 25, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s race-based hostile work environment claim asserted under 42 U.S.C. § 1981.
From the decision:
The Goldberg Plaintiffs next bring a claim of hostile work environment under 42 U.S.C. § 1981 against Defendants for the allegedly racist behavior that Goldberg experienced while employed by the Bespoke Entities. To establish a claim of hostile work environment in violation of Section 1981, a plaintiff must show [1] that the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and [2] that a specific basis exists for imputing the objectionable conduct to the employer.
Defendants claim that Goldberg cannot show discrimination because he himself used offensive language and conduct concerning Jewish people. As explained earlier, though, the Court declines at this juncture to rely on extrinsic evidence such as communications between the parties and affidavits by Defendants that were not included in or incorporated by the complaint. Even if the Court were to consider those materials, it is not unheard of for in-group members to simultaneously re-appropriate racialized terminology for use, while maintaining an objection to its use by out-group members.
[Citations and internal quotation marks omitted; emphasis added.]
Based on this, the court concluded that “Defendants’ assertions about Goldberg’s conduct, even if true, do not necessarily defeat Plaintiffs’ claims” and that, therefore, plaintiffs’ hostile work environment claim survives defendants’ motion to dismiss.