Two harassing incidents—10 years apart!—support hostile environment claim
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Wednesday, March 16, 2016

Two harassing incidents—10 years apart!—support hostile environment claim

By Kathleen Kapusta, J.D. Acknowledging that "many, if not most, of the analogous cases in which courts have denied motions to dismiss or for summary judgment have presented instances of harassment more severe" than an supervisor’s purported two isolated instances of physically touching an employee that occurred 10 years part, a federal district court in Connecticut nonetheless found that as a matter of law it could not be said that the supervisor’s actions, taken together, did not alter the employee’s working conditions. The court denied the employer’s motion to dismiss her hostile work environment claim. Her retaliation claim based on her alleged social isolation at work after complaining about the harassment also survived (Flowers v. Northern Middlesex YMCA, March 11, 2016, Shea, M.). The YMCA housekeeper alleged that in 2004, the director of maintenance struck and slid his hand across her buttocks. She reported this to the YMCA president. Ten years later, the director allegedly touched the side of the employee’s breast and left arm. She again reported the incident, this time to the YMCA’s HR rep, who spoke to the director and then told the employee he would not touch her again. Don’t talk to her. After the second incident, the director purportedly instructed other YMCA workers not to speak with the employee or enter the laundry room if she was there. He also allegedly gave her "disgruntled facial stares." The housekeeper also said that her workload increased but because she was "making too much money," she was not allowed to work extra hours. She ultimately resigned after suffering a stroke. She then sued, asserting HWE and retaliation claims in violation of Title VII and the Connecticut Fair Employment Practices Act. "Difficult" HWE claim. The housekeeper’s allegations presented a difficult case, observed the court, noting that the frequency of the alleged harassment—two isolated incidents that occurred 10 years apart—weighed against her. The severity of the harassment, however, weighed in her favor, as physical abuse like unconsented touching and striking, particularly on sensitive areas of the body such as buttocks or breasts, is more severe than other forms, such as "vulgar banter." And while the unconsented touching of a woman’s buttocks or breasts is physically intimidating and humiliating, particularly when it has occurred on more than one occasion, the employee failed to allege facts detailing these two incidents. As to whether the harassment unreasonably interfered with the employee’s ability to perform her job, although she alleged that her workload was increased and she was isolated from other employees, these allegations related to the director’s retaliatory actions, not his sexual harassment. Barely enough. The housekeeper alleged barely enough to state a plausible HWE claim, said the court, finding that a reasonable person in her shoes would have interpreted the director’s acts as neither inadvertent nor unintentional; he touched sensitive areas of her body with his hands on two occasions (striking her body on one occasion); and he subjected her to physical sexual harassment more than once. Noting that the Second Circuit has repeatedly cautioned against resolving HWE claims via judicial disposition by setting the threshold for stating such a claim too high, the court determined it was plausible and not speculative to conclude that a reasonable worker in the employee’s shoes would fear that she remained at risk of future physical harassment by the director. Retaliation claim. At issue in the employee’s retaliation claim was whether the alleged social isolation was a materially adverse employment action. Certain district courts in the Second Circuit have asserted that social isolation alone is not a materially adverse action, observed the court, stating that to the extent they have held that employer-orchestrated isolation at work can never be sufficient to constitute such an action in a retaliation claim, it disagreed. "The social environment in a workplace can prove to be a powerful motivator," said the court, and fear of employer-sponsored isolation "might well" influence an employee’s decision whether to make or support a charge of discrimination. While it was unable to uncover any controlling precedent stating that social isolation ordered by a supervisor could not be a materially adverse action for purposes of a retaliation claim, the court noted that the Second Circuit has recognized cognizable claims for transfer-based retaliation claims that involved isolation, but those cases entailed isolation pertaining to a decrease in responsibilities or functions, not employer-orchestrated coworker isolation. However, citing its obligation to draw all reasonable inferences in the plaintiff’s favor, the court concluded that the employer-orchestrated social isolation she alleged "could well dissuade a reasonable worker from making or supporting a charge of discrimination." Her allegations of supervisor-driven social isolation in the workplace, which resulted from her opposition to the director’s sexual harassment, thus stated a plausible retaliation claim.

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