In Graham et al v. Cha Cha Matcha, Inc. et al, 23 Civ. 9911 (PAE), 2024 WL 3540324 (S.D.N.Y. July 25, 2024), the court, inter alia, held that plaintiffs sufficiently alleged a race-based hostile work environment claim under under 42 U.S.C. § 1981.
The court summarized the black-letter law as follows:
Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right … to make and enforce contracts … as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). Section 1981 “thus outlaws discrimination with respect to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such as employment.” Patterson v. County of Oneida, 375 F.3d 206, 224 (2d Cir. 2004); see also Littlejohn v. City of New York, 795 F.3d 297, 320 (2d Cir. 2015). The same “core substantive standards” that apply under Title VII apply to claims of employment discrimination under Section 1981. Patterson, 375 F.3d at 225.
“To establish a hostile work environment under Title VII, § 1981, or § 1983, 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.’ ” Littlejohn, 795 F.3d at 320–21 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). This standard includes both subjective and objective elements. Objectively, “the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive.” Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014); see also Harris, 510 U.S. at 22–23. Subjectively, the victim “must … perceive the work environment to be abusive.” Raspardo, 770 F.3d at 114.
“[A] work environment’s hostility should be assessed based on the totality of the circumstances.” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation marks omitted). Factors that may be considered include: “[1] the frequency of the discriminatory conduct; [2] its severity; [3] whether it is physically threatening or humiliating, or a mere offensive utterance; and [4] whether it unreasonably interferes with an employee’s work performance.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010) (quoting Harris, 510 U.S. at 23). At the motion to dismiss stage, however, a plaintiff need only plead that he or she was faced with “harassment … of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse”—a bar that the Second Circuit has “repeatedly cautioned against setting … too high.”
Applying the law to the facts, the court explained:
Defendants argue that the conduct as pled consisted of a “few isolated incidents of racial enmity” and is insufficiently severe or pervasive to state a claim. Def. Br. at 20–21.
That is unpersuasive. The FAC alleges that plaintiffs were subjected to repeated virulent racial slurs by their supervisor over a period of several months in 2021. FAC ¶¶ 57, 70, 73, 105–06, 109, 116, 137 (alleging at least six separate incidents in which supervisor called plaintiffs a “nigga” or used the word “nigga” in their presence). As the Second Circuit has emphasized, “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (cleaned up); see also Banks v. Gen. Motors, LLC, 81 F.4th 242, 266 (2d Cir. 2023) (“The epithet has been described as a term that sums up all the bitter years of insult and struggle in America, a pure anathema to African-Americans, and probably the most offensive word in English.” (cleaned up)).
The use of that epithet in this case—including several instances in which it was directed specifically at plaintiffs—suffices to plead “that a reasonable employee would find the conditions of her employment altered for the worse.” Terry, 336 F.3d at 148. That is especially so given the frequency with which this slur was allegedly used over a short period. See Gorzynski, 596 F.3d at 102 (“frequency of the discriminatory conduct” may be considered in assessing a “work environment’s hostility”); see also, e.g., Levy v. NYC Health + Hosps., 660 F. Supp. 3d 220, 234–35 (S.D.N.Y. 2023) (hostile work environment claim adequately pled where complaint alleged “two incidents” in which supervisor “directed a racial slur” at plaintiff and “repeatedly” used slur in referring to other colleagues); Luo v. AIK Renovation Inc., No. 23 Civ. 5878 (LJL), 2023 WL 8113437, at *5 (S.D.N.Y. Nov. 22, 2023) (hostile work environment claim adequately pled where complaint alleged “several” uses “of the n-word in reference to Black people”); Spencer v. Glob. Innovative Grp., LLC, No. 17 Civ. 7604 (PGG) (BCM), 2023 WL 6633860, at *9–12 (S.D.N.Y. Oct. 12, 2023) (hostile work environment claim adequately pled where complaint alleged supervisor “ ‘loudly and clearly’ used the n-word ‘on more than five occasions’ ” in personal phone calls overheard by plaintiff). Measured against the assembled case law, the FAC has pled enough to survive a motion to dismiss.
Defendants rely upon Moody v. Empire Hotel Development, Inc., No. 20 Civ. 2203 (PMH), 2023 WL 5480729 (S.D.N.Y. Aug. 24, 2023). But Moody was disposed of at the summary judgment stage, a vital distinction that defendants conspicuously overlook. At summary judgment, a plaintiff must adduce sufficient admissible evidence on which a reasonable jury could find in her favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion to dismiss, however, a complaint need only plead sufficient factual allegations that make the claim to relief plausible. See Iqbal, 556 U.S. at 678. Thus, in the context of a hostile work environment claim, at summary judgment, a plaintiff must present evidence on which a factfinder could conclude that her workplace was “hostile or abusive,” Raspardo, 770 F.3d at 114, but, on a motion to dismiss, need only plead facts establishing that “she was faced with harassment” that altered “the conditions of her employment … for the worse,” Patane, 508 F.3d at 113 (quoting Terry, 336 F.3d at 148). In any event, Moody is readily factually distinguished, as the evidence there supported only that the plaintiff’s supervisor had “used the ‘n-word’ in her presence,” not that the supervisor had called her the n-word, whereas plaintiffs here allege that they were personally referred to as such. See Moody, 2023 WL 5480729, at *11–12; cf. Spencer, 2023 WL 6633860, at *11–12 (distinguishing cases in which plaintiff “overheard” their supervisor “use the n-word” and cases in which plaintiff was addressed by “that slur”).
[Citations omitted.]
Based on the foregoing, the court denied the motion to dismiss the race-based hostile work environment claim under Section 1981.
Furthermore, the court held that plaintiffs likewise asserted claims of race-based hostile work environment under the New York State and City Human Rights Laws, since section 1981 acts as a “floor” for the state and city law.