131
well-being, can and often will detract from employees’ job performance, discourage employees
from remaining on the job, or keep them from advancing in their careers.”
1125
Determining whether conduct is sufficiently “severe or pervasive” requires one to assess
“the totality of the circumstances” rather than isolated instances of misconduct.
1126
“[N]o single
factor is required,” but factors commonly considered 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.”
1127
Examples of “workplace conduct that may be actionable . . . include [u]nwelcome sexual
advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.”
1128
“Direct contact with an intimate body part constitutes one of the most severe forms of sexual
harassment . . . ”
1129
Although “[w]hen entering a workplace, reasonable people expect to have
their autonomy circumscribed in a number of ways[,] . . . giving up control over who can touch
their bod[ies] is usually not one of them.”
1130
Harassing conduct, however, “need not be
1125
Id.
1126
Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir. 1997); accord Redd, 678 F.3d at 176 (“The objective
hostility of a work environment depends on the totality of the circumstances, viewed from the perspective of a
reasonable person in the plaintiff’s position, considering all the circumstances [including] the social context in
which particular behavior occurs and is experienced by its target.” (internal quotation marks, citation, and ellipsis
omitted)). Hostile work environment claims can cover conduct that occurs before the applicable statutes of
limitations so long as an act contributing to the hostile work environment occurs within the limitations period. See
Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91 (2d Cir. 2011) (citation omitted); accord
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, (2002).
1127
Redd, 678 F.3d at 175 (quoting Harris, 510 U.S. at 23).
1128
Id. at 179–81 (concluding that a reasonable jury could find conduct sufficiently severe or pervasive where
supervisor “brushed against” or felt employee’s breasts on three occasions); Bailey v. Sheehan, No. 1:16-CV-1370
(GTS/CFH), 2019 WL 3975453, at *1 (N.D.N.Y. Aug. 22, 2019) (denying summary judgment where, inter alia,
plaintiff’s supervisor “asked her to spend the night with him” at a company party); Rice v. Smithtown Volkswagen,
321 F. Supp. 3d 375, 388 (E.D.N.Y. 2018) (concluding that allegations of a “pattern of overt and unwanted
solicitation of sexual intercourse” stated a harassment claim); Morris v. New York City Health & Hosp. Corp., No.
09-CV-5692 (MKB) (ST), 2018 WL 4762247, at *11 (E.D.N.Y. Sept. 30, 2018) (explaining that a “reasonable
person would find an unwelcome attempted kiss, an invitation to dinner, and attempted touching to the groin to be
severe, physically threatening, and humiliating”); Prince v. Madison Square Garden, 427 F. Supp. 2d 372, 380
(S.D.N.Y. 2006) (denying motion to dismiss hostile work environment claim where manager “initiated unwelcome
conversations with [plaintiff and others] about their sex lives”); Wahlstrom v. Metro-North Commuter R.R. Co., 89
F. Supp. 2d 506, 521 (S.D.N.Y. 2000) (finding that attempts to touch and kiss plaintiff may constitute a hostile work
environment where “the physical contact between the parties was neither harmless nor accidental”).
1129
Redd, 678 F.3d at 180. In addition to violating relevant discrimination laws, certain physical conduct may
violate state tort laws for battery. See Walia v. Vivek Purmasir & Assocs., Inc., 160 F. Supp. 2d 380, 393-94
(E.D.N.Y. 2000); S.R. ex rel. M.R. v. Turnbull, No. 1:12 C 1052(MEA), 2013 WL 1285411, at *3 (S.D.N.Y. Mar.
28, 2013); Black v. ESPN, Inc., 139 N.Y.S.3d 523 (Table), 2021 WL 668760, at *7 (N.Y. Sup. Ct. N.Y. Cty. 2021),
and assault, see S.R., 2013 WL 1285411, at *4; Black, 2021 WL 668760, at *7.
1130
Redd, 678 F.3d at 179 (internal quotation marks and citation omitted); Johnson v. J. Walter Thompson U.S.A.,
LLC, 224 F. Supp. 3d 296, 307-08 (S.D.N.Y. 2016) (concluding that allegations of plaintiff’s supervisor often
rubbing plaintiff’s shoulders, stroking her face, and engaging in other acts of unwanted touching “plausibly allege[d]
a pattern wherein [the supervisor] asserted physical power over [plaintiff] without her consent”).