Sexual Harassment (Hostile Work Environment) Claim Survives Dismissal; Alleged Touching/Grabbing Was “Severe”

In Hernandez v. Premium Merchant Funding One, LLC et al, 2020 WL 3962108 (S.D.N.Y. July 13, 2020), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.

While the court found that certain “despicable if true” actions were “isolated” and “too infrequent to be considered pervasive” (as well as allegations of a generally “toxic environment”) were insufficient to make out an actionable hostile work environment claim, it reached the opposite conclusion with respect to other conduct – namely, physical touching coupled with sexual remarks.

From the decision:

[T]he Second Circuit has also noted that even a single episode of harassment can establish a hostile work environment if the incident is sufficiently ‘severe.’ Hernandez alleges that throughout her employment at PMF, Moore reduced her commissions, took business leads away from her, bullied her, and disparaged her. Standing alone, these allegations do not raise a reasonable inference that this conduct was taken on account of Hernandez’s gender. … But the October 2018 incident when Moore approached Hernandez from behind and grabbed her breast while making a sexual comment is reprehensible. This Court finds that, when viewed in combination with Moore’s other conduct, Hernandez has plausibly alleged a sufficiently severe incident. … Moreover, the Second Circuit has repeatedly cautioned against setting the bar too high for hostile work environment claims. [Emphasis added; citations and internal quotations marks omitted.]

The court also had “little trouble finding that this conduct occurred because of Hernandez’s sex,” citing Second Circuit case law for the proposition that “discrimination because of sex may be demonstrated by harass[ment] in such sex-specific and derogatory terms … [as] to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.”

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