Circuit lays down the rules on sexual harassment claims under Section 1983

Employment discrimination cases usually proceed under Title VII and other statutes. But you can also sue public employers under 42 U.S.C. sec. 1983, which enforces the Equal Protection Clause, which in turn also prohibits employment discrimination. There are advantages to suing under Section 1983, but there are pitfalls as well. This case highlights the pitfalls.

The case is Raspardo v. Carlone, decided on October 6. This is one of the lengthiest cases I've seen from the Second Circuit in a while, as three plaintiffs are suing a slew of public defendants for sexual harassment. What complicates the case is that under Section 1983, you generally cannot sue the public employer unless Monell liability can attach, i.e., the discrimination was the result of a municipal policy or practice. This means you have to sue individuals under Section 1983, and they can assert qualified immunity from suit if the law was not clearly-established at the time. The other complication is that sexual harassment cases involve a variety of actors, i.e., harassers (who create the hostile environment) and supervisors (whose failure to stop the harassment actually create liability under Title VII).  Here are the basics when you sue under Section 1983 for sexual harassment:

1. You cannot sue individuals under Section 1983 unless they personally committed sexual harassment that was severe or pervasive. If the hostile work environment was created by several employees, and some of those employees merely contributed to the environment but their harassment was sporadic and was not enough to independently create a hostile work environment, then that employee cannot be sued personally under Section 1983. The Court of Appeals (Droney, Winter and Lynch) says, "our prior cases have established only that when a plaintiff alleges that multiple individual defendants have engaged in uncoordinated and unplanned acts of harassment, each defendant is only liable under Section 1983 when his own actions are independently sufficient to create a hostile work environment." This means that, for qualified immunity purposes, "we therefore cannot say that it is clearly established law that an individual defendant has violated a plaintiff's equal protection rights if he has not personally behaved in such a way as to create an atmosphere of severe or pervasive harassment."

2. In sexual harassment cases under Section 1983, supervisors can be liable for the harassment if they were grossly negligent in supervising the subordinates who committed the harassment. "The standard of gross negligence is satisfied where the plaintiff establishes that the defendant-supervisor was aware of a subordinate's prior substantial misconduct but failed to take appropriate action to prevent future similar misconduct before plaintiff was eventually injured." The Court adds, "A supervisor is not grossly negligent, however, where the plaintiff fails to demonstrate that the supervisor knew or should have known of a problematic pattern of employee actions where the supervisor took adequate remedial steps immediately upon learning of the challenged conduct."The standards for supervisor harassment under Section 1983 (gross negligence) are more difficult for plaintiffs to satisfy than under Title VII, where you need only show that management was negligent in handling the employee's sexual harassment allegations.

Since several plaintiffs are accusing several defendants of harassment, the Second Circuit's decision is quite lengthy, nearly 100 pages. Many of the defendants are let off the hook because the harassment is not severe or pervasive enough or because the bad behavior was not based on gender. The following excerpt, however, shows how one defendant did violate clearly-established sexual harassment law under Section 1983:

Raspardo cites four principal incidents to support her hostile work environment claim against Carlone. In 2007, Carlone asked Raspardo if she was “planning to go out drinking or have sex with [her] boyfriend,” another officer in the department, told Raspardo that her uniform should be more “form fitting,” and attempted to massage Raspardo’s shoulders. In early 2008, Carlone showed Raspardo a suggestive photograph of a woman wearing tactical gear in a magazine which was focused on the woman’s buttocks and passed the photo around to other male officers who were also present, saying that the woman’s buttocks looked like Raspardo’s.

Raspardo told Carlone that his comments were not funny or ignored him and left immediately during these incidents. Raspardo also stated in a sworn statement to the NBPD during its investigation of Carlone that Carlone, her direct supervisor at the time, “made references [of a sexual nature] to [her]  body parts on at least over ten occasions,” particularly concerning her buttocks, often in front of other officers, which made her “feel disrespected, angry, and embarrassed.” She reiterated these allegations in her later deposition testimony and interrogatory answers.

The four principal incidents, including unwanted touching and vulgar comments in front of other officers, when combined with the “over ten” additional comments about Raspardo’s body, all over a period of just one year, would be amply sufficient to permit a jury to find a sexually hostile work environment. The evidence presented by Raspardo, if true, demonstrates that Carlone violated her constitutional right to equal protection through this sexual harassment.