The case is Desardouin v. City of Rochester, decided on February 19. Plaintiff's supervisor, McIntyre, made sexual advances toward her and another woman. On a weekly basis, he told plaintiff that her husband was "not taking care of her in bed." That is the extent of the hostile work environment evidence. Is it enough for trial? The district court said no, but the Court of Appeals (Newman, Raggi and Lynch) says Yes. Here's the analysis:
The comments persisted on a weekly basis over an interval that lasted at least two and perhaps three months. Though not threatening, they were more than merely offensive. For a male to say to a female employee under his supervision that her husband was “not taking care of [her] in bed” is the sort of remark that can readily be found to be a solicitation for sexual relations coupled with a claim of sexual prowess and can just as readily be found to have been perceived as such by the female employee. The weekly repetition of such a remark over several weeks only served to reenforce its offensive meaning and to make sexual intimidation, ridicule, and insult a pervasive part of Desardouin’s workplace, effectively changing the terms and conditions of her employment. ... Indeed, Desardouin’s affidavit stated that she found McIntyre “threatening,” and that he made “sexual advances” toward her and another employee. The allegations of repeated solicitation of sexual relations in a vulgar and humiliating manner suffice to warrant a trial.It's all a matter of perspective. The facts in support of plaintiff's claim are brief: McIntyre propositioned plaintiff and her co-worker, and on a weekly basis he suggested that plaintiff's husband was not taking care of her in bed. But that simple sentence packs a punch. The supervisor did this every week. That makes the harassment pervasive. He also made a crude reference to plaintiff's sex life, implying that he could satisfy her in bed. That makes it severe. You may not think so, and neither did the district court, which in dismissing the case, said: "There is no allegation or evidence of severe conduct on the part of McIntyre, such as unwanted touching, or that the conduct was pervasive. Although the alleged comments made by McIntyre that Ms. Desardouin's husband was not taking care of her are vulgar, there is no evidence that they were of a frequency to constitute a pervasive atmosphere of hostility." But the jury might deem it severe or pervasive, and summary judgment is reversed.
The Second Circuit has been reversing summary judgment in hostile work environment cases for quite some time now. The judges have no tolerance for this kind of nonsense in the workplace. Close cases are going to trial.