Sex-Neutral Acts Relevant in Gender Discrimination Claims

It is fairly well settled that to prevail on a claim of hostile work environment based on gender discrimination, the plaintiff must establish that the abuse was indeed based on his or her gender. However, facially neutral incidents may be included among the "totality of the circumstances" that courts consider. Last Thursday, the Second Circuit revived a woman's lawsuit against a Verizon subsidiary over allegations she was subjected to sexual harassment, discrimination and retaliation, ruling that the lower court ignored that sex-neutral acts could be part of an overall hostile work environment.

The case goes back a long way. Cindy Moll, a sales engineer in Buffalo, New York, sued Verizon in October 2004 for subjecting her to a sexually hostile work environment and to gender disparate treatment. She alleged that beginning in 1998 and until she was appointed a new boss, her then-boss Daniel Irving had made sexually suggestive comments in notes and on a work trip invited her to his hotel room. She said in her lawsuit that Irving froze her pay and prevented her from working from home, even as he allowed men she worked with to do both things.

After years of motions and rulings, the gender discrimination claim was still in dispute. Verizon argued for the first time that Moll's hostile work environment claims also fail because her allegations are not sufficiently pervasive or severe to support an actionable claim. A lower court had agreed and dismissed her claim..

The problem in this case was that Moll was the victim of a number of incidents, some of which were obviously based on her gender, but others that were not. The others were just plain mean and insulting, but not related in any way to her being a female. Moll argued in her appeal that the lower court should have considered acts that were not sexually offensive by nature that become offensive when included as part of the overall work environment.

In its opinion Thursday the appeals court agreed with Moll, ruling that a hostile work environment under Title VII occurs where the workplace is permeated with "discriminatory intimidation, ridicule and insult" that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Conduct that is facially sex-neutral can contribute to that environment, it said.

The takeaway: A hostile work environment claim based on gender discrimination must show that you are being discriminated against because of your sex; however, incidents that are sex-neutral on their face may sometimes be used to establish a course of sex-based discrimination. Be sure to make note of all hostile incidents, not just ones relating to your gender.