Second Circuit Eases Burden For Proving Hostile Work Environment Claim
Employers frequently have been able to mount a successful defense to hostile work environment sexual harassment claims by demonstrating that both male and female workers were exposed to the same conduct underlying the claim. Title VII of the Civil Rights Act of 1964 prohibits discrimination or harassment because of an employee’s sex. Where both men and women are subjected to the same sexually offensive behavior, it can be argued that the conduct is not based on the plaintiff’s sex and therefore does not violate Title VII. A recent decision by the United States Court of Appeals for the Second Circuit, however, casts doubt over the future viability of this defense. In Petrosino v. Bell Atlantic, 385 F.2d 210 (2d Cir. 2004), the Second Circuit rejected the argument that exposure by both male and female employees to the same sexually offensive behavior precludes a woman from relying on such behavior to establish a claim of hostile work environment based on sex.
The plaintiff, Lisa Petrosino, worked as a telephone installation and repair technician for Bell Atlantic (now known as Verizon Communications) in Staten Island, New York, and was the only female technician working at the job site. In support of her claim of hostile environment sexual harassment, Petrosino alleged that the work atmosphere was permeated with sexually demeaning conversations and comments which conveyed a profound disrespect for women, and that she was frequently forced to confront sexually explicit drawings scrawled inside terminal boxes that she was required to access on the job, including one that depicted Petrosino performing a sexual act on a supervisor. Petrosino also adduced evidence that she was physically assaulted by a co-worker, and that her co-workers, including supervisors, frequently made disparaging comments about her.
Petrosino ultimately resigned her position and filed a complaint alleging claims of sexual harassment, failure to promote, constructive discharge, and intentional infliction of emotional distress. The district court granted Bell Atlantic’s motion for summary judgment on all of Petrosino’s claims, concluding, with respect to the hostile work environment claim, that the conduct did not constitute sex discrimination because it affected “all employees, male and female.”
On appeal, the Second Circuit affirmed the lower court’s dismissal of Petrosino’s promotion and constructive discharge claims but reversed the grant of summary judgment on her hostile work environment claim. Specifically rejecting the reasoning employed by the district court to support its dismissal of the hostile work environment claim, the court concluded that “[t]he mere fact that men and women are both exposed to the same offensive circumstances on the job site . . . does not mean that, as a matter of law, their work conditions are necessarily equally harsh.” Instead, the hostility of the work environment, the court reasoned, must be judged from the perspective of a reasonable person in the plaintiff’s position, considering all of the circumstances, including the social context in which particular behavior occurs and how it is experienced by its target. The court ruled that summary judgment should not have been granted on this claim because a reasonable jury could conclude that “a reasonable person, regardless of gender, would consider the sexually offensive comments and graffiti here at issue more offensive to women than to men and, therefore, discriminatory based on sex.” Significantly, the court commented that the fact that most of the sexually offensive behavior was not directed specifically at Petrosino, and likely would have occurred regardless of her presence in the workplace, “does not, as a matter of law, preclude a jury from finding that the conduct subjected Petrosino to a hostile work environment based on her sex.”
In reaching this conclusion, the court acknowledged that while the conduct at issue may have sexually ridiculed both men and women, there existed an important distinction. It explained: “The conduct at issue sexually ridiculed some men, but it also frequently touted the sexual exploits of others. In short, the insults were directed at certain men, not men as a group. By contrast, the depiction of women in the offensive jokes and graphics was uniformly sexually demeaning and communicated the message that women as a group were available for sexual exploitation by men. Such workplace disparagement of women, repeated day after day over the course of several years without supervisory intervention, stands as a serious impediment to any woman’s efforts to deal professionally with her male colleagues.”
On this basis, the court held that notwithstanding the fact that all employees were equally exposed to the sexually offensive language and graffiti, “a reasonable jury could find this conduct more demeaning of women than men and, therefore, the evidence should not have been excluded from an assessment of the totality of circumstances in considering Bell Atlantic’s motion for summary judgment.”
This decision is significant for employers. It recognizes that a work environment rife with offensive conduct, including slurs, graphic depictions, and banter, may support a hostile environment claim notwithstanding the fact that a plaintiff cannot demonstrate that the behavior was directed at him or her in particular or at members of his or her sex. This decision emphasizes, once again, how important it is for all employers to have in place broad anti-harassment policies, to train supervisory personnel to be on the lookout for such conduct, and to take measures to put an immediate end to it if discovered.