Frequently Asked Questions about New York Hostile Work Environment

Simple Q&A on New York Hostile Work Environment Law

Q: How Bad Does it Have to Be? A: Really bad. To win a hostile work environment claim, a plaintiff has to prove that that his or her workplace was “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). In other words, the inappropriate conduct has to be more than a minor issue at work and must have significantly changed your working conditions. Keep in mind, whether or not working conditions have been changed is determined from the standard of a reasonable person. The court will ask, “what would a ‘reasonable person’ think of this situation?”

Q: What is a “reasonable person”? A: A “reasonable person” can vary with the judge. The concept is meant to approximate what an average person would do in the plaintiff’s situation.

Q: Is One Instance Sufficient? A: It can be, but it has to be really bad. A Plaintiff must 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). The key is that the working environment has been altered as a result of the conduct.

Q: What About Many Small Things Over Time? A: Same answer as above. If the many small things impact the working environment, they may amount to a hostile work environment. However the series of incidents 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).

Q: What Factors Do Courts Consider? A: The factors courts examine 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).

Q: Does the Conduct Have to be Discriminatory? A: Yes. For example, a plaintiff cannot bring a hostile work environment claim based on race when the conduct had nothing to do with race. The conduct does not, however, have to be directed at the plaintiff. A hostile work environment claim can be brought based on discriminatory treatment of others.

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