Sexual harassment: we know it when we see it

What does it take to win a hostile environment case? Nobody knows. You know a hostile work environment when you see it.

The case is Leifer v. New York State Division of Parole, a summary order decided on August 23. Leifer is a Jewish employee whose supervisors made various religiously-hostile comments. The district court rejected the religious harassment claim. The Court of Appeals (Hall, Straub and Eaton [D.J.]) reinstates the case.

Leifer was subjected to six hostile comments from supervisors over a three-year period. Here they are:

(1) Dress’s statement that Jewish laws and customs were not binding on him and that he would not reschedule meetings because of Jewish holidays; (2) Dress’s statement that “you are not like the rest of us . . . . You are like Saddam Hussein”; (3) the failure to apprehend the individual responsible for defacing Leifer’s wedding photo; (4) Oeser’s refusal to grant Leifer an extended lunch hour during Passover; (5) Hoy’s directive that Leifer remove pictures from his wall displaying political figures near Menorahs; and (6) Hoy’s statement about filing false complaints of anti-Semitism.

The Second Circuit notes that while these statements, by themselves, "may not allow a reasonable trier of fact to conclude based on that act alone that Leifer was subjected to a hostile work environment[,] [W]hen viewed in toto, however, drawing all reasonable inferences in Leifer's favor, there is a genuine issue of fact whether the acts in question had an adverse effect on, or altered the conditions of, Leifer's employment." The question is, does this harassment alter the conditions of Leifer's employment "for the worse?" They might, and that's enough to vacate summary judgment.

So Leifer had six incidents in three years. The Court of Appeals distinguishes this case from Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002), which rejected a hostile work environment case where the plaintiff had five incidents in four years. This case is also distinguished from an unpublished district court action, Shabat v. Blue Cross Blue Shield, where the plaintiff had nine hostile incidents in 3.5 years. Every case is distinguishable from any other case, and the Second Circuit says that "the frequency and severity of harassment demonstrated in prior cases does not mandate a specific level of harassment that future plaintiffs must demonstrate to avoid summary judgment against them."