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Second Circuit Reiterates What Can Meet Severe or Pervasive Standard

Gebrial Rasmy worked as a banquet server for JW Essex House New York, managed by Mariott International. He complained that certain of his co-workers were “engaging in wage theft and overcharging.” When other employees learned of his complaints, he was subjected to retaliation that included racial, ethnic, and religious slurs. Rasmy is Egyptian and a “devout Coptic Christian.” Rasmy alleged that his union steward called him names using offensive language. This same individual also stated that “the idea of God is garbage,” “religions [are] for the stupid people,” and that “priests are child molesters and alcoholic[s].” Other employees were also alleged to have called Rasmy names such as “rat,” “mummy,” “camel,” “Egyptian rat,” “pretentious Christian,” and “gyps[y].” In his presence, the union steward made general negative comments about Egyptians. Rasmy complained about the comments to the administration but nothing changed. When he filed an EEOC charge, the abuse intensified. The Director of Human Resources allegedly told him how upset she was about his charges and instructed him to keep his mouth “shut” or risk termination. Rasmy was ultimately fired for purportedly getting into an altercation.
After the federal district court dismissed the claims, the Second Circuit Court of Appeals reversed that decision. Of particular note was the district court’s determination that comments such as “rat” and the filing of false workspace complaints did not constitute discrimination because they were not explicit reflections of discrimination. The circuit court held, “Our case law is clear that when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim.” In addition, the court also reiterated that a totality of the circumstances should be considered, including comments that were deliberately made in Rasmy’s presence but not directed at him which can contribute to a hostile work environment. The absence of physical contact did not mean that the harassment was not severe; three years of alleged discriminatory harassment could be sufficient. Lastly, there were genuine disputes of material fact as to whether his performance had been impacted by the conduct, and whether he had been fired in retaliation for his EEOC complaints.