Facially Sex-Neutral Statements and Conduct May Support a Sexually Hostile Work Environment Claim
August 20, 2014
The Second Circuit’s recent decision in Moll v. Telesector Resources Group, Inc. is a good reminder to employers that a sexually hostile work environment claim can be based on more than just sexually explicit or sexually offensive statements and conduct. Such a claim can also be established by facially sex-neutral statements and conduct under certain circumstances. Cindy Moll, the plaintiff in that case, was employed as a Systems Analyst for Verizon from 1997 until 2002. Ms. Moll alleged that she was subjected to a sexually hostile work environment because her supervisor had done such sexually offensive things as: leave her three “inappropriate” notes in 1998-1999; repeatedly ask her to come to his hotel room while they were on a business trip in 1999; and leave her a note in 2001 that said he thought about her when he was taking a shower. She also claimed, however, that other facially sex-neutral conduct engaged in by her supervisor also contributed to the sexually hostile work environment that she experienced. For example, Ms. Moll alleged that her supervisor: required her to communicate with him only in person, as opposed to by phone or email; told her she could not be assessed for a promotion because of an alleged promotion freeze, even though two of Ms. Moll’s male colleagues were promoted during the alleged freeze; put Ms. Moll on a job performance improvement plan in 2002; told her she could no longer work from home in 2002, even though other male employees were allowed to do so; denied Ms. Moll’s request to take vacation in 2002, even though the same requests from her less senior male colleagues were granted; and excluded her from work-related social events, including attending professional hockey games. In September 2003, Ms. Moll filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) regarding, among other things, the above conduct that she alleged constituted an unlawful sexually hostile work environment under Title VII of the Civil Rights Act (“Title VII”). She subsequently filed a lawsuit in the U.S. District Court for the Western District of New York. In response to Ms. Moll’s complaint, Verizon made a motion to dismiss her hostile work environment claim because, it argued, no sexually offensive conduct was alleged to have occurred within the applicable statute of limitations period. In New York, a plaintiff is generally required to file a charge of discrimination with the EEOC within 300 days of the alleged unlawful conduct. When a hostile work environment claim is alleged, at least one incident of harassment must be shown to have occurred within the 300 days prior to filing with the EEOC. Verizon argued that because the last incident of sexually offensive conduct (i.e., the supervisor’s note in 2001) occurred more than 300 days before Ms. Moll’s charge was filed with the EEOC, her hostile work environment claim was untimely and should be dismissed. The District Court agreed with Verizon and dismissed the plaintiff’s hostile work environment claim. Ms. Moll then appealed the dismissal of her claim to the Second Circuit Court of Appeals. The Second Circuit reversed, holding that the District Court had improperly failed to consider all of Ms. Moll’s allegations in their totality, particularly the alleged conduct that was not sexually offensive in nature. The Second Circuit determined that, based on Ms. Moll’s allegations, a reasonable fact-finder could have found the alleged facially sex-neutral conduct was sex-based and therefore contributed to the sexually hostile work environment. As the Second Circuit explained:To decide whether the threshold has been reached, courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse. . . . Facially sex-neutral incidents may be included . . . among the “totality of the circumstances” that courts consider in any hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on sex.The Second Circuit reversed the dismissal of Ms. Moll’s hostile work environment claim because the District Court did not consider whether the sex-neutral conduct alleged by Ms. Moll occurred within the applicable statute of limitations period. The Moll decision serves as a good reminder of what must be considered by employers faced with an internal complaint from an employee that he/she is experiencing a sexually hostile work environment. Even if the sexually explicit statements and sexually offensive conduct about which the employee complains occurred in the distant past, the employer must still review the totality of the circumstances, including all facially sex-neutral statements and conduct alleged by the employee, to determine whether a sexually hostile work environment exists. If so, the employer must act promptly and decisively to remedy the situation, or else face potential liability.
