Second Circuit Rules Employee Cannot Recover for Harassment of Others
In order for a hostile work environment to be actionable, it must be sufficiently severe or pervasive to alter the terms and conditions of the plaintiff's employment. The U.S. Court of Appeals for the Second Circuit in New York recently ruled that an employee who did not personally experience harassment, but who claimed to suffer psychological injury from the knowledge that others in her workplace were being sexually harassed, cannot recover damages. Leibovitz v. New York City Transit Authority, 2001 U.S. App. LEXIS 11718 (2nd Cir. June 6, 2001)
The plaintiff, a deputy superintendent at the New York City Transit Authority, was told by other employees about sexual harassment purportedly occurring in another division of the Transit Authority. She claimed that her frustrated attempts to secure a remedy for the victims led to a major depressive disorder. The jury found that the plaintiff did not herself suffer discrimination, but nevertheless awarded her $60,000 for the Transit Authority's "deliberate indifference to widespread discriminatory practices [and] sexual misconduct against others."
The Court of Appeals reversed. The court ruled that, even assuming the plaintiff and the victims shared the same workplace, the plaintiff failed to demonstrate that the harassment altered the terms and conditions of her employment. The plaintiff personally witnessed none of the offensive conduct and presented only second- and third-hand evidence that it occurred. In any case, the broad conception of "workplace" urged by the plaintiff was not sustainable, the court continued. The victims were working in another part of the premises, out of the plaintiff's sight and regular orbit; they worked in a different department under a different supervisor. In these circumstances, the objectionable conduct was too far afield to be deemed to have affected the plaintiff's employment: "In terms of the objective impact of the harassment alleged, that harassment might as well have been going on in a nearby office of another firm, or been the subject of an infuriating newspaper article, or been a false rumor of a kind that would be upsetting if true."
While the employer in Leibovitz was able to have the case dismissed, it is important to note the narrow scope of the court's ruling. As the court noted, evidence of harassment directed at others can in some cases be relevant to a plaintiff's own hostile environment claim, particularly where the plaintiff witnessed the objectionable conduct. Similarly, comments directed at a plaintiff but made out of her presence can also create an actionable hostile environment. Clearly, the Leibovitz decision should not lead employers to be any less vigilant in preventing and punishing acts of workplace harassment.