The 2nd U.S. Circuit Court of Appeals upheld the dismissal of a female worker’s gender-based discrimination claim, but let her proceed with a gender-based hostile work environment claim challenging the alleged watching of dirty movies at work.
Eleanora Patane began working at Fordham University as a secretary in its Classics Department. In that position, she worked for a professor, John Richard Clark, who at times during Patane’s employment held the position of department chair.
Patane alleged that Clark engaged in sexually inappropriate conduct and also asserted that his actions created a sexually hostile work environment. Her allegations centered largely on claims that Clark habitually watched pornographic videos on his office computer and that Patane was required to open and deliver the videos to his office as they were mailed to him. She also alleged that Clark used her office computer to view pornographic web sites when he came to the office on the weekends.
Although Patane complained about Clark’s viewing and use of such materials to Fordham’s equal employment opportunity director, no remedial actions were taken. Subsequent to Patane’s internal complaints, Clark allegedly “removed virtually all of her secretarial functions, kept her entirely out of the departmental information ‘loop,’ refused to speak to her and communicated with her only by e-mail.”
Patane filed a charge of discrimination with the Equal Employment Opportunity Commission and ultimately filed a lawsuit in federal court, alleging both sexual discrimination and hostile environment under Title VII, along with related state claims. The district court granted the defendants’ motion to dismiss all of the claims.
On appeal, the 2nd Circuit upheld the dismissal of Patane’s sex discrimination claim, but reversed the dismissal of the hostile environment claim.
Mistreatment at work is actionable under Title VII when it occurs because of an employee’s sex. In this case, Patane failed to plead any facts to support the claim that she was subject to any gender-based adverse employment action, or that any gender-based motivation for her “mistreatment” existed. The 2nd Circuit therefore found that the district court had properly dismissed the Title VII discrimination claim.
In spite of that, the court went on to hold that Patane’s hostile environment claim could go forward. It specifically found that Patane had pled all three of the elements of a sexually hostile work environment—namely, that:
• The conduct was objectively severe and pervasive (i.e., it was an environment that a reasonable person would find to be hostile or abusive).
• Patane herself subjectively perceived the environment to have been hostile or abusive.
• The conduct was hostile because of Patane’s gender.
Further, the court spelled out the factors that it could consider in assessing the environment:
• The frequency of the discriminatory conduct.
• Its severity.
• Whether it is threatening/humiliating, or a mere offensive utterance.
• Whether it unreasonably interferes with an employee’s performance.
The court then found that Patane’s allegations that she observed pornographic videos in Clark’s office, that she was forced to handle the videos as part of her job, that Clark used her computer to view pornography and that Patane’s complaints were unavailing, were sufficient to create a jury question under Title VII.
Patane v. Fordham University , 2nd Cir., No. 06-3446 (Nov. 28, 2007).
Professional Pointer: Employers should recognize that discriminatory behavior not directed specifically at an employee still may contribute to the creation of a hostile environment for that individual, regardless of whether a claim of individual sexual discrimination can be supported. If the alleged gender-based activity is severe and pervasive enough to alter the terms and conditions of employment both objectively and subjectively, an employer may be found liable for violation of Title VII under a hostile environment rationale.
Maria Greco Danaher is an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh.
Note: This article should not be construed as legal advice.