For the second time in two days, the Second Circuit has reversed a lower court’s dismissal of an employment claim.

This time, in Patane v. Clark, released today, the Second Circuit reversed an decision granting a motion to dismiss a claim of sexual harassment claim.  The takeaway from the case today is that the mere presence of pornography in the workplace — even if never viewed directly by the plaintiff-employee — may be sufficient to state a claim of sexual harassment (and that the District Court was wrong to dismiss such a claim without even allowing the parties to conduct discovery).

The Court’s key finding is summarized in this section:

Specifically, the district court concluded that Plaintiff failed to allege that she faced an objectively hostile work environment, “because [she] never saw the videos, witnessed [her supervisor] watch the videos, or witnessed [her supervisor] performing sexual acts.” Patane, 435 F. Supp. 2d at 316. However, Plaintiff does allege that she regularly observed [him] watching pornographic videos. This Court has specifically recognized that the mere presence of pornography in a workplace can alter the “status” of women therein and is relevant to assessing the objective hostility of the environment….

Moreover, Plaintiff alleges that she was regularly required to handle pornographic videotapes in the course of performing her employment responsibilities of opening and delivering [her supervisors] mail; and that she once discovered hard core pornographic websites that [he] viewed on her workplace computer. Combined with Plaintiff’s other allegations regarding [his] sexually inappropriate behavior in the workplace, including her allegation regarding his earlier harassment of [another employee], and with [the employer’s] failure to take any action notwithstanding Plaintiff’s numerous complaints, a jury could well conclude that Plaintiff was subject to frequent severely offensive conduct that interfered with her ability to perform her secretarial functions.

This case is yet another reminder to employers to: 1) be vigilant about preventing pornography in the workplace; and 2) to investigate all claims seriously.  I discussed this in yesterday’s post, but the Second Circuit’s message to employers should be loud and clear — investigate all claims of gender discrimination and harassment; failure to do so will leave the employer susceptible to such claims in the future.  This decision is a full published decision and can be cited in future cases.

The case is also a reminder to bolster any internet firewalls to prevent access to pornographic websites from the workplace.  Even if another employee never views the pornography directly, its presence (and tacit allowance by an employer) could be used as the basis for a hostile work environment claim.