The High Bar For Harassment Cases

Owing largely to a series of decisions from the United States Supreme Court over the last ten years, it has become increasingly difficult for employees to bring successful race or sex harassments lawsuits. Though there are several threads of the Supreme Court’s decisions that have produced the significant drop in successful harassment lawsuits, one of the most important principles is that even conduct that is explicitly based on race or gender will not support a harassment lawsuit unless it is “sufficiently severe or pervasive.”

Alfred Clauberg, of Irish heritage, was a correction officer working at the Sing Sing state prison in New York. Clauberg sued the State, contending he was the victim of impermissible harassment based upon his national origin. When a state trial court dismissed the lawsuit, Clauberg appealed to the Appellate Division of New York’s Supreme Court.

The Court upheld the dismissal of Clauberg’s claims. The Court found that “to be sure, Clauberg was subjected to inexcusable incidents of racist enmity while working. While at Sullivan Correctional Facility, his photograph was posted in the correction officers’ lineup area with derogatory phrases and slurs written on it. Clauberg was also subjected to the jibes from coworkers who disparaged his Irish heritage and referred to him as Reverend Al, and was further exposed to racist media and jokes.

“Clauberg found this behavior to be abhorrent and reprehensible and, indeed, employers such as the State are well advised to adopt zero tolerance policies in the workplace to combat it. The record nevertheless demonstrates that the State did not acquiesce in this conduct – which was isolated and occurred over the course of many years – and the record demonstrates that it was not sufficiently severe or pervasive so as to create an actionable hostile work environment.”

Clauberg v. State, 943 N.Y.S.2d 653 (A.D. 2012).