New York Employment Attorney Blog
Under federal law, you must prove that you suffered either “severe” or “pervasive” harassment to win a hostile work environment case. So, what happens if the harassment you endured was encapsulated in just one incident? Clearly, that’s not pervasive, but can it be severe? The answer is “yes, it can,” so don’t give up on your case just because you don’t have a long list of incidents of harassment. Instead, reach out to an experienced New York sexual harassment lawyer and find out what options exist for you.
The case of B.B., a clerical assistant with the New York Department of Sanitation, is a strong example of what a viable single-incident hostile work environment case looks like.
In 2014, the department reassigned B.B. to a garage in upper Manhattan. At the Manhattan garage, B.B. allegedly was the target of multiple sexually explicit comments about her body.
The alleged harassment was not limited solely to offensive comments. In one alleged incident in October 2016, a coworker sliced B.B.’s pants with a razor. In another, the same coworker “deliberately shoved the handle of a broomstick deeply into [B.B.’s] clothed buttocks while callously laughing,” according to the complaint.
The department tried to dodge liability by asserting that, of the incidents B.B. alleged in her complaint, most were too old to qualify under the statute of limitations and the few that did (namely, the razor incident and the broom incident) were not severe or pervasive enough to amount to a valid hostile work environment claim.
The court disagreed. In denying the employer’s motion for summary judgment, the court stated that the broom incident alone was enough for a viable hostile work environment case.
Clearly, as the incidents numbered only a very few, the clerk’s case was not one of pervasive sexual harassment. However, the law does not require proof of severe and pervasive harassment; it is an either-or proposition.
The Level of Intrusiveness and the Harasser’s Intent are Keys
When it comes to single-incident hostile work environment cases, past cases from the federal courts around New York have centered their focuses “on the degree to which the contact was intentional and/or physically intrusive.”
In staking the boundaries of this question, the courts have erected some fairly clear guideposts. If the alleged harasser brushed against you, even if it was with his genital area, that’s probably not enough to constitute a hostile work environment if it was a lone incident.
On the other hand, if your harasser pressed his genital region against you, or he intentionally grabbed, squeezed, or otherwise groped an intimate part of your body, then even just one incident may be all you need. Basically, for a viable single-incident case, you need proof the contact was both (1) purposeful and (2) highly invasive or intrusive.
B.B.’s case was one of those. Even if the only viable incident she could use was the broomstick one, that alone was enough. The coworker’s alleged action apparently included taking a broom and cramming the end of the broomstick deep into B.B.’s gluteal cleavage over her clothes, all the while laughing about it. The coworker’s alleged laughter would seem to point toward a fully intentional act. Additionally, as the posterior cleavage and anal areas of a person’s body undeniably represent intimate regions, B.B.’s accusation met all of the criteria needed for a potential single-incident instance of hostile work environment sexual harassment.
Other federal courts in New York have reached similar conclusions in single-incident cases where the alleged victims had their breasts groped or their buttocks slapped.
Glancing Contact Isn’t Enough, But Groping or Slapping Is
The department had several cases to support its argument that the broom incident was too isolated to constitute a hostile work environment. Those cases did not help the employer, though, because they involved things like a female worker whose male coworker brushed her thigh with his hand, a male worker whose female supervisor allegedly stood in his cube in a manner such that her genital region was extremely close to his shoulder and/or face, or a worker whose coworker poked them in the back.
All of those instances were different. They either involved fleeting contact (a brush of the hand to a thigh), no contact (the supervisor with personal space issues), or contact with a non-intimate body part (a poke in the back.)
The alleged contact in B.B.’s case was the opposite of glancing or fleeting, and it was with a region of her body far more intimate than her back. Those differences between the cases the employer cited and B.B.’s allegations helped her shoot down the employer’s arguments in favor of a judgment on the pleadings.
When it comes time to take on your employer in court for the extreme sexual harassment you suffered on the job, make sure you have the best legal representation. Look to the experienced New York hostile work environment attorneys at Phillips & Associates. We have many years of successfully representing workers just like you, so contact us online or at (212) 248-7431 today to set up a free and confidential consultation to find out how we can help.