In a recent case, Glapion v. Saks Fifth Avenue, LLC, No. 24-2232, 2025 WL 506649 (E.D.La. Feb. 14, 2025), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s sex-based hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
To state a claim for hostile work environment, Plaintiff must allege that (1) she belongs to a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on protected status; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action. Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 125 (5th Cir. 2011) (citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)).
Workplace harassment affects a term, condition, or privilege of employment when it is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Hernandez, 670 F.3d at 651 (quotations omitted). This standard does not require a “tangible psychological injury,” but it does necessitate more than a “mere utterance of an…epithet which engenders offensive feelings in a[n] employee.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). To determine whether the conditions of employment have been altered to the extent that the workplace has become “hostile,” courts consider 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.” Hernandez, 670 F.3d at 651 (quoting Ramsey, 286 F.3d at 268). “A single incident of harassment may be sufficiently severe to give rise to a claim in some instances, while a continuous pattern of much less severe incidents of harassment may be pervasive enough to violate Title VII in other cases.” Illinois Cent. R.R. Co. v. Brotherhood of Locomotive Eng’rs and Trainmen, 505 F. Supp. 3d 626, 633 (E.D. La. 2020). In addition, “the work environment must be ‘both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.’ ” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
While Defendant concedes that Plaintiff is a member of a protected class, it argues that she is unable to meet the remaining four elements needed to bring a hostile work environment claim on the basis of sex. Overall, Defendant argues that the conduct Plaintiff alleges was not severe or pervasive enough to constitute a hostile work environment. It cites examples of cases where courts granted summary judgment for the employer where the conduct was not severe or pervasive enough. In one cited case, unwanted touching by a co-worker on one occasion and comments of a graphic and sexual nature over a period of six months were not sufficient. Guidry v. Zale Corporation, 969 F. Supp. 988 (M.D. La. 1997).
However, factual considerations available at the summary judgment stage are not available on a 12(b)(6) motion in which the Court looks only to the pleadings. In the Plaintiff’s complaint, she alleges both ongoing harassment by coworkers and isolated incidents of gender-based comments including being called a “Black Bitch” by a male coworker, discovering a disparaging video of herself posted online by a colleague, and not being allowed to sell in certain areas of the store.
Furthermore, Plaintiff also alleges harassment by a customer, Cargo. It is well-established in the Fifth Circuit that a customer’s behavior can give rise to a cause of action for a hostile work environment if the employer was aware of that behavior and allowed it to continue. See Gardner v. CLC of Pascagoula, LLC, 915 F.3d 320, 321-322 (5th Cir. 2019) (“Because the ultimate focus of Title VII liability is on the employer’s conduct—unless a supervisor is the harasser, a plaintiff needs to show that the employer knew or should have known about the hostile work environment yet allowed it to persist[.]”). For example, in Sansone v. Jazz Casino Company, LLC, a casino employee was sexually harassed by a customer at least twice a week over a three-month period while operating a baccarat table. 2021 WL 3919249, at *1 (5th Cir. Sept. 1, 2021). Throughout the three-month period, the employee reported the customer’s behavior to her supervisors but felt her claims were never adequately addressed. Id. at *4. The Fifth Circuit reversed this Court’s grant of summary judgment for the employer on the issue of hostile work environment, finding that genuine issues of material fact existed as to whether the employee adequately reported the behavior and if the employer responded appropriately. Id. Here, likewise, Plaintiff alleges several instances of sexual harassment by Cargo, including the incident in which he attempted to kiss her, grabbed her arm, and stalked her. Plaintiff alleges that she reported this behavior to her employer through meetings with her supervisors, contacting asset protection, and reporting her history with Cargo to human resources and nothing was done to prevent this behavior.
The court concluded that “[o]verall, considering the behavior by Plaintiff’s coworkers and Cargo, she has stated a viable claim for hostile work environment” and that “[a]lthough Defendant contends that the behavior by Saks’ employees or Cargo was not severe or pervasive enough to constitute a hostile work environment, this is a factual dispute inappropriate for a resolution on a 12(b)(6) motion.”