Hostile work environment case is revived in part through neutral acts of abuse

This hostile work environment case collects various doctrines and legal principles over the last two decades in reviving a national origin and religious harassment case. The Second Circuit holds that the district court improperly granted summary judgment for the employer.

The case is Rasmy v. Marriott International, issued on March 6. I represent the plaintiff and argued the appeal. Plaintiff says that various coworkers made repeated vulgar references to his status as a Coptic Christian. These comments were directed toward plaintiff, and the coworkers also made insulting discriminatory comments in plaintiff's presence, though they did not target plaintiff directly He alleges that management ignored his complaints about this harassment. The New York Law Journal summarizes the case at this link. Here, I will set forth what the Court of Appeals (Cabranes, Bianco and Reiss [D.J.] says the trial court got wrong:

1. The district court overlooked precedent holding that "when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim." Case authority for this includes Pucino v. Verizon Communications, 618 F.3d 112 (2d Cir. 2010). Since plaintiff claims coworkers made discriminatory comments and were abusive in ways that were not facially discriminatory, that entire course of behavior may create a hostile work environment, which requires proof that the harassment was severe or pervasive as to alter the working conditions.

2. The district court improperly held that the timing of the harassment after years without incident is that coworkers abused plaintiff not out of hostility toward his national origin and religion but because they were retaliating against him for blowing the whistle on their wage theft. The jury alone draws that inference, not a court on a summary judgment motion. Case authority for this is Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001).

3. The district court held that discriminatory comments that plaintiff overheard but were not directed at him could not support his hostile work environment claim. While the district court said these were "stray remarks," the proper analysis is whether these comments were sufficiently pervasive or chronic to support his claim. "Conduct not directly targeted at or spoken to an individual but purposefully taking place in his presence can nonetheless transform his work environment into a hostile or abusive one." The Second Circuit adopts the EEOC's position in this regard, noting that the amicus brief in this case advances that principle.

4. The trial court also got it wrong in holding that plaintiff did not prove severe harassment because a prior Second Circuit case held that a plaintiff did not have an adverse action after his supervisor assaulted him. But that case was a disparate treatment case, not a hostile work environment case, which applies a different analysis. There is no rigid calculation in determining whether the plaintiff has a viable harassment case, and since plaintiff alleges "numerous incidents of discriminatory treatment over the course of at least three years . . . we consider relevant the total impact on Rasmy on the many alleged episodes of harassment."

5. While the district court recognized that the jury could find that plaintiff alleged "pervasive" harassment, it said plaintiff has no case because he did not allege he had been physically threatened or that the conduct had interfered with his job performance. That piecemeal analysis is not proper under hostile work environment doctrine. Threats and diminished job performance may support such a claim, but it is not required if plaintiff otherwise proves that the overall work environment had severe or pervasive harassment. "By its very nature that determination is bound to raise factual disputes that likely will not be proper for resolution at the summary judgment stage," and besides, "there is a reasonable inference that Rasmy participated in a physical altercation as part of a deteriorating job performance caused by the alleged hostile work environment." And, plaintiff also alleged the harassment caused him significant emotional distress, sending him to a psychiatrist who prescribed him anti-anxiety medication. This suggests the overall work environment had been altered. Authority for this derives in part from Harris v. Forklift Systems, 510 U.S. 17 (1993).