Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Thursday, March 14, 2013

2d Circuit Issues Important Sexual Harassment Decision

Desardouin v. City of Rochester, ____F.3d____(2d Cir. Feb. 19, 2013), is an important decision where the Second Circuit clarified the standards for hostile environment sexual harassment. As the court stated:

    A hostile work environment claim requires a plaintiff to
show that a workplace is “so severely permeated with discriminatory
intimidation, ridicule, and insult that the terms and conditions of
her employment were thereby altered.” Alfano v. Costello, 294 F.3d
365, 373-74 (2d Cir. 2002) (citations omitted). The plaintiff must
also show “either that a single incident was extraordinarily severe,
or that a series of incidents were sufficiently continuous and
concerted to have altered the conditions of her working environment.”
Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal
quotation marks omitted). If a plaintiff relies on a series of
incidents, they must be “more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive.” Perry v.
Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (internal
quotation marks omitted). In determining whether the threshold has
been met, relevant factors include “the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether
it unreasonably interferes with an employee’s work performance.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The
plaintiff must also subjectively perceive the environment to be
abusive. Id. at 22-23.

Mitchell H. Rubinstein

 

 

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