By: Michael D. DeMeola, Esq.
Working in a hostile environment can be a very traumatic experience. Indeed, victims of sexual harassment often experience a pattern of mistreatment over an extended period of time. This may include physical or verbal abuse, and often includes overtly gender-specific conduct as well as behavior which on its face appears to be gender-neutral (behavior that while abusive, when considered independently, may appear to have nothing to do with one’s gender).
When considering whether a victim of sexual harassment is entitled to judicial redress, it is important to take both types of conduct into account. In fact, when considering a claim brought under Title VII, a court will consider the totality of the circumstances, including both facially gender-specific behavior as well as behavior that is facially gender-neutral.
Generally speaking, Title VII prohibits, “discrimination against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s… sex.” 42 U.S.C. § 2000e-2(a)(1). Title VII is not limited to “’economic” or “tangible” discrimination, however. The phrase “terms, conditions, or privileges of employment” evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment.
As the Court explained in Harris, Title VII is violated, “When 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,” Id. Importantly, an employer is presumed to be responsible where the perpetrator of the harassment was the plaintiff’s supervisor. See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998).
In determining whether an environment is “hostile” or “abusive,” the Court in Harris stated that one must consider all the circumstances surrounding the alleged discrimination. 510 U.S. at 23. This may include 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. The effect on the employee’s psychological well-being is also relevant to determining whether the plaintiff actually found the environment abusive.
Notably, while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Id. Because the analysis of severity and pervasiveness looks to the totality of the circumstances, the crucial inquiry focuses on the nature of the workplace environment as a whole. To that end, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim. Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000).
Gender Discrimination in a Hostile Work Environment
It is fairly well settled that to prevail on a claim of hostile work environment based on gender discrimination, the plaintiff must establish that the abuse was indeed based on his or her gender. See, e.g., Raniola v. Bratton, 243 F.3d 610, 621 (2d Cir. 2001). However, facially neutral incidents may be included among the “totality of the circumstances” that courts consider. Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002). In determining whether facially sex-neutral incidents were part of a pattern of discrimination on the basis of gender the Court may consider, for example, whether the same individual engaged in multiple acts of harassment, though some may have been overtly sexual and some not. Id.
Gender Hostility Cases
In Raniola, supra, the Court concluded that, given proof of instances of overt gender hostility by the supervisor of the female plaintiff, a rational juror could have permissibly inferred that his entire alleged pattern of harassment against her was motivated by her gender, even though some of the harassment was not facially sex-based. Thus, the relevant circumstances in Raniola included not only offensive sex-based remarks, but also one facially gender-neutral threat of physical harm by the supervisor who had made the remarks.
In Kaytor v. Electric Boat Corporation, 609 F. 3d 537 (2d Cir 2010), the United States Court of Appeals for the Second Circuit adhered to this principle. In that case, the plaintiff, an administrative assistant in the defendant’s engineering department, brought suit under Title VII alleging that the department manager sexually harassed her. The plaintiff alleged that in addition to constantly staring at her and making suggestive advances, the manager also threatened her with physical harm. For example, the manager allegedly told the plaintiff he wished she was dead, saying, “I’d like to see you in your coffin.”
Additionally, on six occasions, the manager allegedly told the plaintiff he wanted to choke her. In overturning the trial Court’s decision which effectively dismissed the plaintiff’s case, the Appellate Court explained, “…the court should not have excluded from consideration [the plaintiff’s] testimony as to [the manager’s] stated desires to choke her, to see her in a coffin, and to kill her.” According to the court, one could permissibly infer that the manager’s harsh treatment of the plaintiff was the result of his spurned advances and that the facially gender-neutral threats he directed at the plaintiff were, in fact, because of her sex.