The case is Hernandez v. Kaisman, a First Department ruling decided on December 27. The plaintiffs worked for a dentist who sent his employees offensive emails that joked about sex and were often quite explicit. The defendant also told Hernandez that she needed breast implants and said he enjoyed it when she bent over and could see her underwear. He made physical gestures about oral sex and told another woman that she needed to lose weight, slapping her rear end in the process. He left condoms lying around the workplace and spoke often about his affinity for large breasts. The dentist did a few other things, but you get the picture.
The First Department disagrees with the trial court that said this was not gender-based behavior since men were exposed to it also. "Considering the totality of the circumstances, a jury could reasonably determine that the emails were sent in an effort to specifically provoke a reaction from the women in the office, and that they were therefore singled out from the male employees."
Turning to the distinctions between state and city law, the Appellate Division says that the city law only requires proof that "the plaintiff has been treated less well than other employees because of her gender." Under state law, the plaintiff has to show that the work environment was "severe and pervasive," which means that boorish behavior does not create a hostile work environment. Plaintiffs have no claim under state law. The Appellate Division says:
There is no question that the emails that defendant circulated in the office were inappropriate. However, their distribution by defendant is closer to what would be described as "boorish" behavior than the "severe" types of incidents which have been found to create a hostile workplace environment ... The only email that contained what could arguably be described as pornographic material was the video excerpt entitled "Birthday Vibrator" and it does not appear that the clip was explicit. The other offensive incidents, including defendant's touching Herarte's rear end and suggesting she "tighten" it up, telling Hernandez she should get a breast enlargement and that he "enjoyed" looking at her exposed underwear, and generally commenting that he liked large-breasted women, are too sporadic to be considered "pervasive."
But the plaintiffs do have a claim under the city law. The Court says, "we can only dismiss the latter claim if we determine that this is a 'truly insubstantial case' in which defendant's behavior cannot be said to fall within the 'broad range of conduct that falls between severe and pervasive' on the one hand and a petty slight or trivial inconvenience' on the other."
Viewed independently, defendant's dissemination of emails containing mildly offensive sexual media content may not have been enough to rise to the level of a hostile environment under the City HRL. However, the overall context in which the emails were sent cannot be ignored. The record supports plaintiffs' claim that defendant took a perverse pleasure in demeaning and embarrassing his female employees. This was obvious from his statements, related by plaintiffs, concerning, in the case of Hernandez, the size of her breasts, and in the case of Herarte, the size of her backside. While such statements may have been isolated, that is irrelevant under the City HRL, since "[o]ne can easily imagine a single comment that objectifies women being made in circumstances where that comment would, for example, signal views about the role of women in the workplace and be actionable." Here, the comments and emails objectifying women's bodies and exposing them to sexual ridicule, even if considered "isolated," clearly signaled that defendant considered it appropriate to foster an office environment that degraded women.Astute readers will notice that the First Department repeatedly says that, to prevail, the plaintiff has to show a "severe and pervasive" work environment. But the U.S. Supreme Court, in outlining the parameters, has always said the plaintiff needs to prove a "severe or pervasive" work environment. The Second Circuit also applies the "severe or pervasive test." In Pucino v. Verizon Wireless Commications, Inc., 618 F.3d 112, 119 (2d Cir. 2010), the Court of Appeals said, "a plaintiff need not show that her hostile working environment was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements, to have altered her working conditions." Under this distinction, "[Plaintiff] must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of [Plaintiff's] working environment." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). Since one incident may be severe but not pervasive, the and/or distinction can make a difference in whether the plaintiff can reach a jury.
What makes this all so strange is that the Appellate Division in this case cites Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295 (2004), in the context of setting out the "severe and pervasive" legal standard. But in Forrest, the New York Court of Appeals articulated the "severe or pervasive" test, further stating in a footnote that state courts follow federal standards in cases like this. Id. at 330 n.3. The Appellate Division in the Hernandez case even cites that footnote. So what we have is not a new legal standard under the State Human Rights Law but sloppy opinion-writing.