Martha Ellen Brennan v. Metropolitan Opera Association, Inc., David Kneuss, Joseph Volpe

JON O. NEWMAN, Circuit Judge,

concurring in part and dissenting in part:

Though I agree with the majority’s rejection of the plaintiffs age discrimination claim, I respectfully dissent from the majority’s refusal to permit a jury to decide whether the prolonged display on an office bulletin-board of photos of nude and partially clothed men constitutes a hostile work environment entitling a female employee to claim gender discrimination in violation of Title VII. In my view, this is precisely the sort of issue on which the sense of the community, as expressed by a jury, should be brought to bear.

The key facts are largely undisputed. Martha Brennan shared an office at the Metropolitan Opera with several other employees, including Stephen Pickover. A bulletin board was located above Pick-over’s desk, very close to Brennan’s desk. In 1991, Pickover placed on the bulletin board seven photos, the size of postcards. All depict nude or partially clothed men. One photo shows a circle of nude men frolicking on a beach with arms interlocked; the precise nature of their activity is not clear. The genitals of two of the men are plainly visible. In two other photos, the men’s heads had been cropped, and the evident focus of the photos is the men’s genital areas, covered by scanty, tight-fitting bathing suits, which render the genital areas prominent. Brennan removed the photos in 1992 and placed them on a shelf above Pickover’s desk, expressing her complaint about their display. He put the photos back up on the bulletin board. According to Brennan, two other female employees also complained to Pick-over about the photos. The secretary to David Kneuss, the Executive Stage Director of the Met, twice told him of complaints about the photos by female employees. He took no action. The photos remained on display during Brennan’s employment, which ended in 1993.

These facts present two issues: (1) can the display of the photos reasonably be found to discriminate against women on the basis of gender, and (2) can the display of the photos reasonably be found to constitute a gender-based hostile work environment. The majority declines to decide the first issue and rules adversely to Brennan on the second issue.

1. Gender-based discrimination. In Title VII cases, the usual standard is stated to be “ ‘whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 , 118 S.Ct. 998 , 140 L.Ed.2d 201 (1998) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 25 , 114 S.Ct. 367 , 126 L.Ed.2d 295 (1993) (Ginsburg, J., concurring)). That formulation makes sense where a member of a protected class complains of discrimination with respect to wages or vacation days. But commonality of exposure cannot be permitted to defeat all claims of gender discrimination. Displays of photos of Blacks being lynched or of nude women in sexually provocative poses would not be insulated from Title VII claims simply because the photos were observable by all office employees, White and Black, male and female.

Whether such displays can be found to constitute discrimination turns in large part on the perspective from which the offensive nature of the displays are assessed. The choice is between the perspective of a reasonable person or that of a reasonable member of the protected class. Our Court has used language supporting both alternatives. In Torres v. Pisano, 116 F.3d 625 (2d Cir.1997), we pointedly noted that a reasonable “woman” would have found the work environment hostile, and we cited decisions in several circuits stating that the relevant perspective is that of a member of the protected class. *321 See id. at 632-33 & n. 6 (collecting cases). 1 However, in Richardson v. New York State Dep’t of Correctional Service, 180 F.3d 426 (2d Cir.1999), we stated, albeit in a footnote, that “we reject the view of those courts that look to the perspective of the particular ethnic or gender group ...,” preferring instead the perspective of a “reasonable person who is the target of racially or ethnically oriented remarks.” Id. at 436 n. 3. In Oncale , the Supreme Court advised that the harassment “should be judged from the perspective of a reasonable person in the plaintiffs position, considering 'all the circumstances,’” 523 U.S. at 81 , 118 S.Ct. 998 (quoting Harris, 510 U.S. at 23 , 114 S.Ct. 367 (Ginsburg, J., concurring)), but this formulation leaves the matter unresolved because the reference to “the plaintiffs position” could mean either only the circumstances to which the plaintiff was exposed or those circumstances plus the plaintiffs own race or gender. The Court’s next sentence, requiring “careful consideration of the social context in which particular behavior occurs and is experienced by its target,” id. at 81, 118 S.Ct. 998 (emphasis added), tilts toward the latter meaning.

Though it is possible to articulate the concept of a reasonable person, without regard to racial or gender characteristics, it will require considerable mental agility for most fact-finders to apply such a concept in assessing hostile work environment claims. Is the construct that of a reasonable person lacking racial or gender characteristics or only a reasonable person who assesses the circumstances without regard to the person’s own race or gender? Moreover, there is a risk that a reasonable “person” test, however appropriate for issues like negligence, will permit the perspective of the majority to carry the day as to race and gender issues; the majority of Whites might well not be aware that certain remarks or displays are offensive to most Blacks, and the majority of men might well be just as insensitive to certain remarks or displays that most women consider offensive. The perspective of the reasonable “person” might turn out to be the very stereotypical views that Title VII is designed to outlaw in the workplace. 2 If a reasonable “person” perspective is to be used, it would seem essential to permit evidence as to how members of the protected class regard the challenged remarks or displays, so that the construct of the reasonable “person” at least means an informed reasonable person. Even that approach risks allowing claims to be rejected out of indifference, though it avoids, or at least minimizes, the risk that claims will be rejected out of ignorance.

In this case, I need not choose between the reasonable “woman” standard of Torres and the reasonable “person” standard of Richardson , nor guess at what the Supreme Court meant in Oncale by “a reasonable person in the plaintiffs position,” because I believe that a jury could reasonably find that a reasonable “person,” regardless of gender, would consider the displayed photos more offensive to women than to men. The District Court expressed the view that “it is most reasonable to conclude that the sexual objectification of one sex — in this case, male — would be most offensive to members of that sex.” Brennan v. Metropolitan Opera Ass’n, Inc., No. 95 Civ. 2926(MBM), 1998 WL 193204 , at *14 (S.D.N.Y. Apr.22, 1998) (emphasis added). Whether or not such a conclusion is the “most reasonable” one to be reached (which I very much doubt), it is surely not the only reasonable conclusion that could be reached. If probative evidence persuaded a fact-finder that women *322 are more offended than men by continuous displays of male nudity, tinged with sexual overtones, that conclusion would be immune from rejection on appeal. On such matters, Title VII is more faithfully implemented by relying on the finding of a jury that has heard evidence than on the untested assumption of a trial judge ruling on a motion for summary judgment. In this case, the element of gender-based discrimination is satisfied to an extent sufficient to permit a jury to consider the issue.

2. Hostile work environment. Though the display of photos may reasonably be found to be more offensive to women than to men, the issue remains whether the degree of offensiveness may reasonably be found to be severe enough to constitute a hostile work environment for purposes of Title VII. The Supreme Court has assured us that “[cjommon sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing ..., and conduct which a reasonable person in the plaintiffs position would find severely hostile or abusive.” Oncale, 523 U.S. at 82 , 118 S.Ct. 998 . I have no doubt that, at the extremes, the continuum from innocent teasing to actionable harassment is subject to decision as a matter of law. A momentary display of photos of nudes, without a hint of sexual activity, could not reasonably be found to constitute a hostile work environment, and a prolonged display of photos of nudes, rife with sexually explicitly activity, could reasonably be found only to constitute a hostile work environment. The display in this case seems to me to fall plainly within the middle area in which the informed judgment of jurors is appropriate. The photos depict a group of nude and partially clothed men cavorting on a beach. A reasonable inference may be drawn that they are assembled for purposes of some sexual activity. The inference is strengthened by the cropped photos displaying only male torsos and emphasizing their genital areas. There is no suggestion that the photos have any connection with artists painting or sculpting live models, and an inference of mere sun-bathing, though possible, is surely not compelled. Moreover, the photos were displayed prominently on an office bulletin board, and the duration of the display exceeded two years, despite complaints from the plaintiff and other female employees. On facts such as these, the “common sense” and “appropriate sensitivity to social context” that the Supreme Court expected to be applied, see Oncale, 523 U.S. at 82 , 118 S.Ct. 998 , should be that of the community, speaking through a representative jury. In Gallagher v. Delaney, 139 F.3d 338 (2d Cir.1998), this Court reversed another grant of summary judgment in favor of an employer with respect to a claim of gender-based hostile work environment, and in doing so correctly observed that “a jury made up of a cross-section of our heterogeneous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment .... ” Id. at 342 . Because the majority has denied Brennan the opportunity to find out how a jury would assess the facts of this case, I respectfully dissent.

. Ultimately, we affirmed a summary judgment for the employer on the ground that the evidence was insufficient to permit a finding that the employer was liable for the hostile work environment. See Torres, 116 F.3d at 633-41 .

. We have noted, however, that “reasonable people can take justifiable offense at comments that the vulgar among us, even if they are a majority, would consider acceptable.” Torres, 116 F.3d at 633 n. 7.