Hostile environment claims may exist in the absence of specific gender-based discrimination By Maria Greco Danaher Title VII of the Civil Rights Act prohibits both discrimination based upon gender, and a hostile work environment based upon gender issues. Recently, the Second U.S. Circuit Court of Appeals upheld the dismissal of a female employee's gender-based discrimination claim, but allowed her to proceed with her claim for gender-based hostile work environment. Patane v. Fordham University, et al. Second Cir., No. 06-3446, November 28, 2007. Eleanora Patane began working at Fordham University as a secretary in its Classics Department. In that position, she worked for a professor, John Richard Clark, who at times during Patane's employment held the position of Department Chair. Patane alleges that Clark engaged in sexually inappropriate conduct, and further alleged that his actions created a sexually hostile work environment. Her allegations centered largely on claims that Clark habitually watched pornographic videos on his office computer, and that Patane, as his secretary, was required to open and deliver them to his office as they were mailed to him. She also alleged that Clark used her office computer to view pornographic websites when he came to the office on the weekends. Although Patane complained about Clark's viewing and use of such materials to Fordham's EEO Director, no remedial actions were taken. Subsequent to Patane's internal complaints, Clark removed virtually all of her secretarial functions, kept her entirely out of the departmental information loop, refused to speak to her, and communicated with her only by e-mail. Patane filed a charge of discrimination with the EEOC, and ultimately filed a lawsuit in federal court, alleging both sexual discrimination and hostile environment under Title VII, along with related state claims. The district court granted the defendant's motion to dismiss all of the claims. On appeal, the Second Circuit upheld the dismissal of Patane's sex discrimination claim, but reversed the dismissal of the hostile environment claim. Mistreatment at work is actionable under Title VII when it occurs because of an employee's sex. In this case, Patane failed to plead any facts to support the claim that she was subject to any gender-based adverse employment action, or that any gender-based motivation for her mistreatment existed. The Second Circuit therefore found that the district court had properly dismissed the Title VII discrimination claim. In spite of that, the Court went on to hold that Patane's hostile environment claim could go forward. It specifically found that Patane had pled all three of the elements of a sexually hostile work environment: (1) that the conduct was objectively severe and pervasive; that is, it was an environment that a reasonable person would find to be hostile or abusive; (2) that Patane herself subjectively perceived the environment to have been hostile or abusive; and (3) that the conduct was hostile because of Patane's gender. Further, the Court spelled out the factors that it could consider in assessing the environment: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is threatening/ humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's performance. The Court then found that Patane's allegations that she observed pornographic videos in Clark's office, that she was forced to handle the videos as part of her job, that Clark used her computer to view pornography, and that Patane's complaints were unavailing, were sufficient to create a jury question under Title VII. That claim was allowed to go forward. Employers must recognize that discriminatory behavior not directed specifically at an employee may still contribute to the creation of a hostile environment for that individual, whether or not a claim of individual sexual discrimination can be supported. If the alleged gender-based activity is severe and pervasive enough to alter the terms and conditions of employment both objectively and subjectively, an employer may be found liable for violation of Title VII under a hostile environment rationale. n