Sexual Orientation Hostile Work Environment Claim Survives Summary Judgment

In Walsh v. A.R. Walker & Co., Inc., No. 155009/16, 2018 WL 6505409, 2018 N.Y. Slip Op. 33159(U) (Sup Ct, New York County Dec. 07, 2018), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s sexual orientation-based hostile work environment claim under the New York City Human Rights Law.

The court summarized the legal standard for demonstrating a sexual harassment / hostile work environment claim under the NYCHRL:

Sexual harassment which results in a hostile or abusive work environment is one form of gender discrimination prohibited by the NYCHRL. See Suri v Grey Global Group, Inc., 164 AD3d 108, 114 (1st Dept 2018); Williams, 61 AD3d at 75. Hostile work environment discrimination claims also may arise from harassment based on sexual orientation, disability, or other protected categories. See e.g. **14 Keceli v Yonkers Racing Corp., 155 AD3d 1014 (2d Dept 2017) (hostile work environment claim on basis of sexual orientation); Buchwald v Silverman Shin & Byrne PLLC, 149 AD3d 560 (1st Dept 2017) (hostile work environment claim based on perceived disability); Marquart v Department of Educ. of the City of New York, 2017 WL 2781761, 2017 NY Misc LEXIS 2509, 2017 NY Slip Op 31363(U)(Sup Ct, NY County 2017) (claim based on disability or perceived disability); Roberts v UPS, Inc., 115 F Supp 3d 344, 368 (ED NY 2015) (sexual orientation).

To establish liability for a hostile work environment under the NYCHRL, a plaintiff need not prove that the harassment was “severe or pervasive,” the standard applied in cases brought under Title VII and the New York State Human Rights Law, but, instead, must show conduct that was “more than what a reasonable victim of discrimination would consider ‘petty slights and trivial inconveniences.’ ” Williams, 61 AD3d at 80; see Gonzalez v EVG, Inc., 123 AD3d 486, 487-488 (1st Dept 2014); Hernandez v Kaisman, 103 AD3d 106, 114-115 (1st Dept 2012); Nelson v HSBC Bank USA, 87 AD3d 995, 999 (2d Dept 2011). The primary question in harassment cases brought under the NYCHRL, as it is in other terms and conditions cases, is whether plaintiff “has been treated less well than other employees” because of her membership in a protected class. Williams, 61 AD3d at 78. That is, a plaintiff must “establish that she suffered a hostile work environment because of her gender [or other protected status].” Russo v New York Presbyterian Hosp., 972 F Supp 2d 429, 451 (ED NY 2013) (emphasis in original) (citations omitted); see Hernandez, 103 AD3d at 111-112; Williams, 61 AD3d at 81; Mihalik, 715 F3d at 110; Cortes v City of New York, 700 F Supp 2d 474, 485 (SD NY 2010).

While conduct consisting of “ ‘petty slights and trivial inconveniences’ … do[es] “not suffice to support a hostile work environment claim” (Buchwald, 149 AD3d at 560, citing **15 Williams, 61 AD3d at 80), in “borderline situations” and cases where there are conflicting versions of the events that took place raising issues of fact as to whether discriminatory conduct occurred or whether the alleged harasser’s conduct was unwelcome, summary judgment generally should be denied. Williams, 61 AD3d at 78, 80; see Suri, 164 AD3d at 116 (summary judgment improper “ ‘if there is any evidence . . . from any source from which a reasonable inference could be drawn in favor of the nonmoving party’ ”

In this case, plaintiff

contends that [defendant] Beane created an offensive sexualized work environment by, in sum, engaging in simulated sexual activities with a male friend in front of plaintiff, presenting him with sexual objects and pornographic videos, sharing his interest in naked yoga for men and his experiences at nude and gay beaches, asking invasive questions about plaintiff’s sexual orientation and relationships, being overly interested in gay culture and making unwelcome inquiries about plaintiff’s participation as an openly gay man in gay events. Beane testified that no sexual activities occurred, no sex tapes or pornographic materials were given to plaintiff, and any discussions about plaintiff’s activities as a gay man were initiated by plaintiff.

The court concluded that “[t]he sharply divergent testimony of plaintiff and Beane as to what occurred presents classic credibility issues not properly assessed or decided on this motion” and that “[p]laintiff’s sworn testimony that Beane’s offensive conduct included simulated sexual activities and gestures, repeated sex-based remarks, and unwelcome inquiries into plaintiff’s sexual orientation and gay activities, is sufficient to raise a question of fact as to whether plaintiff was subjected to a hostile work environment based on sexual orientation.”

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