Hostile workplace claims not limited to because of sex

A sex-neutral incident or incidents may support a hostile workplace suit even under a higher severe or pervasive federal standard. Sex-based disparate treatment is also unlawful. Females compensated with unequal pay less than males, excluded from social events such as professional hockey games, denied work from home and vacation requests, might be gender-discriminated. Even a supervisor’s inconsistent testimony can support a retaliation claim. These combined facts may form a viable because of sex hostile workplace theory.

The Second Circuit Court of Appeals reverses the trial court in Moll v. Telesector Res. Grp., Inc., Nos. 12-4688-cv, 13-0918-cv (2nd Cir. July 24, 2014). Hostile workplace claims are not limited to because of sex. However, the ones which are may be supported by facially sex-neutral incidents. Plaintiff’s burden is presenting a plausible theory that her workplace was permeated with severe or pervasive conduct, against one or more protected employee classes, making it abusive.

Under federal law, a hostile workplace exists when “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003).

New York applied the federal standard until 2019. In October of that year New York’s revised Executive Law eliminates the severe or pervasive standard statewide. Employees within hostile work environments are protected by a more inclusive standard. Employers have viable defenses when claims against them are no more than petty slights or trivial inconveniences. New York’s statewide intolerance of hostile workplaces now resembles New York City’s more liberally construed standard than the federally applied severe or pervasive one. New York also expands the statute of limitations for because of sex claims to 3 years statewide. The courts across New York are interpreting and applying the new standard today.

Moll’s retaliation claim may be her strongest. That’s not unusual. Verizon transferred her to an inconvenient work location after she complained of discrimination. Verizon decided that everyone on plaintiff’s team should work at the inconvenient location. Plaintiff refused to quit. She endured the forced change to her work location. Verizon then implemented a reduction in force, known as a RIF. After filing suit, plaintiff requested copies of documents which supported Verizon’s reasons for reducing its workforce. Verizon refused. It claimed that such documentation was non-existent. The trial Court sided with Verizon.

The 2nd Circuit Court of Appeals said not so fast. It apparently recognized that Verizon’s claim that its reduction in force was unsupported by documentation could substantiate pretext by it. And that pretext could support plaintiff’s retaliation claim following her discrimination complaint. The non-party, supervisor’s inconsistent testimony created a credibility issue. His sworn statements could also corroborate pretext, supporting plaintiff’s retaliation claim.

The trial Court abused its discretion in denying plaintiff’s discovery requests surrounding its RIF documentation, even if no such documentation existed. Although New York’s revised Human Rights Law became effective 5 years after this case went to the 2nd Circuit, it would be interesting to see how the trial Court might rule today. Federal Courts exercise broad discretion.


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