Just recently, an appellate court in New York City held, in Hernandez v. Kaisman, 2012 N.Y. App. Div. LEXIS 9069 (1st Dept. Dec. 27, 2012), that sexual emails that a supervisor forwarded to his female employees stated a claim for discrimination under the New York City Human Rights Law.
The supervisor, a physician in a medical office, forwarded emails to several female administrative employees that contained graphic sexual images, language and video, including emails with the subject line "How to chose your holiday turkey," "Birthday Vibrator" and "The Perfect Woman." In addition to the emails, the court noted the "social context" in which the emails were distributed, which included the supervisor repeatedly made inappropriate sexual comments to his female employees, such as telling a woman that he had not told her that her underwear was exposed because he was "enjoying" himself, referring to himself as "pimp Kaisman," touching a woman's rear and telling her she needed to "tighten it up" and keeping condoms in a drawer that was accessible to all employees.
The court held that while the plaintiffs' claims did not meet the "severe or pervasive" standard under federal law, the plaintiffs did establish a claim under the broader standard of the New York City Human Rights Law. The court stated that "the overall context in which the emails were sent cannot be ignored." The court noted that the supervisor's comments "clearly signaled that defendant considered it appropriate to foster an office environment that degraded women" and showed that "defendant took a perverse pleasure in demeaning and embarrassing his female employees." The court noted that since this was not "a truly insubstantial case," plaintiffs set forth a claim under the New York City Human Rights Law that should be heard by a jury.