Hostile work environment survives motion to dismiss

This case involves allegations of racial discrimination. In this blog post, I covered the disparate treatment analysis, which found that plaintiff's complaint, notwithstanding the district court's ruling, does assert such a claim. But the complaint also asserts a hostile work environment claim, and that claim will proceed to discovery as well.

The case is Brown v. Montefiore Health System, Inc., issued on October 23. In the disparate treatment portion of the ruling, the Court of Appeals (Bianco, Wesley and Robinson) held that a series of suspicious adverse actions and circumstances give rise to an inference of discriminatory intent. That evidence also supports the hostile work environment claim.

But in addition to those disparate treatment allegations, we have other evidence that also gives rise to a racial harassment case. Under the "totality of the circumstances" test guiding these cases, we have the following allegations:

[The Complaint] alleges that “[Brown] was left out of research assignments, had duties and responsibilities removed from her without notice, [and was] berated and demeaned before her colleagues.” The amended complaint further alleges that Brown was subject to “excessive scrutinization and micromanaging of her work, actions[,] and whereabouts, [] isolation from her co-workers, [the] removal of duties  and responsibilities, [and the] denial of professional opportunities” which, “coupled with the continuous denial of her rightfully earned benefits, [was] all a part of the ongoing discrimination which [] created a very hostile work environment affecting [her] physical, mental and emotional” condition. 

The Court writes, "If proven, the alleged conduct, when considered in its totality and construed in the light most favorable to Brown, could plausibly be sufficiently pervasive or severe to constitute a hostile work environment."

Note that none of these allegations involve explicit racial discrimination, such as racial epithets or jokes. But you can still have a hostile work environment claim without those incidents. As the Court of Appeals writes, "although these alleged instances are not specifically linked to Plaintiff’s status in a protected class (such as with specific alleged comments), it is well-settled that '[f]acially neutral incidents may be included, of course, among the ‘totality of the circumstances’ that courts consider in any hostile work environment claim.'" The case for that proposition is Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002). Citation to Alfano shows this is not a new legal principle in the Second Circuit, but practitioners may overlook it since we associate hostile work environment claims with explicit racist or sexist comments or gestures. In fact, the work environment may be hostile in violation of Title VII if the plaintiff is simply treated poorly because of her race or gender.

In sum, the Court writes, "in reviewing the totality of the circumstances, especially where Brown alleges that she and two other named Black co-workers were treated differently than similarly situated white co-workers in a number of material respects, she has plausibly alleged that the alleged harassment could be related to her status in a protected class, even if such status was not referenced specifically by anyone in connection with the alleged conduct."