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Infrequent Incidents of "Boorish" Behavior Insufficient to Create Hostile Environment, Second Circuit Rules

July 11, 2002

The U.S. Court of Appeals for the Second Circuit in New York recently reversed a $150,000 jury award in a sexual harassment case, finding that the complained of conduct did not rise to the level of an actionable hostile environment. Alfano v. Costello, (2d Cir., No. 00-9304(L), 6/25/02).

To prevail on a claim for hostile environment sexual harassment, a plaintiff must show that he or she was subjected to harassment that was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Isolated instances of harassment are usually insufficient to constitute a hostile work environment. See Supreme Court Decision Provides More Support for Summary Judgment in Title VII Cases (May 1, 2001).

The plaintiff in Alfano, a female guard in a correctional facility, presented evidence of about twelve incidents which occurred between 1989 and 1994. Only four of the twelve incidents had sexual overtones, including comments by a superior officer that the plaintiff ate carrots, bananas and hot dogs in a "seductive manner," the placement of a vulgar drawing in the plaintiff's mailbox (which she opened in the presence of other employees), and the posting of a vulgar notice about the plaintiff on a bulletin board. The other eight incidents were administrative and personnel decisions that the plaintiff claimed were discriminatory on the basis of her sex.

In reversing the jury award in favor of the plaintiff, the Second Circuit found that the incidents about which the plaintiff complained were infrequent and not sufficiently severe to have created a hostile environment. The Court found that although the plaintiff "was made the object of some embarrassment or humiliation aimed at her as a woman," the incidents "were infrequent and episodic" and were "difficult for an employer to remedy because they were largely anonymous." The Court also noted that recent cases in the Second Circuit "found triable issues of fact only where the harassment was of greater frequency and severity than anything [the plaintiff] has demonstrated." The Court concluded that the plaintiff failed to establish a hostile work environment and that she was "simply embarrassed" by the "boorish behavior" of her co-workers.

Although the Court reversed the jury award, it rejected the employer's contention that the eight non-sexual incidents could not be used to support the plaintiff's claim of sexual harassment, stating "[t]here is little question that incidents that are facially sex-neutral may sometimes be used to establish a course of sex-based discrimination."

Although this decision appears to raise the bar for plaintiffs claiming sexual harassment, employers should not be any less vigilant in making sure employees are aware of comprehensive written policies against sexual harassment and must take prompt steps to investigate and address all complaints. The employer in Alfano prevailed in the end, but had to go through a federal court jury trial and an appeal to do so.