--- title: "The “Knife’s Edge”: Second Circuit Dulls the Standard of Proof Needed for a Hostile Work Environment" date: 2017-05-18T15:54:28-04:00 author: Import Bot canonical_url: "https://www.kelleydrye.com/viewpoints/blogs/labor-days/the-knifes-edge-second-circuit-dulls-the-standard-of-proof-needed-for-a-hostile-work-environment" section: Blog Posts --- # The ​“Knife’s Edge”: Second Circuit Dulls the Standard of Proof Needed for a Hostile Work Environment May 18, 2017 The Second Circuit recently reversed a district court’s dismissal of a hostile work environment claim brought by a Muslim plaintiff. *See* *Ahmed v. Astoria Bank, et al.*, 16-1389 (2d Cir. May 9, 2017). In-house counsel and human resources executives should take heed of this decision, which may signal a loosening standard for what may constitute a hostile work environment. As we all know, once a plaintiff gets past summary judgment, the settlement value of a case will increase drastically. As we will talk about below, it becomes even more important to be proactive and prevent these claims. ### **The Facts** The plaintiff, Sherin Ahmed, was an Egyptian and Muslim, and wore a hijab head covering. She only worked for Astoria Bank for three months, but claimed that managers subjected her to a ​“hostile work environment” by: (1) on the day of Ms. Ahmed’s interview (coincidently September 11, 2013), a vice president made comments insinuating that people of Arab or Middle Eastern ethnicity were ​“terrorists”; (2) on several occasions, the same employee made jokes regarding Ms. Ahmed’s hijab head covering; (3) Ms. Ahmed’s supervisor ​“singled her out” on the days she arrived late for work; (4) the supervisor would also speak slowly and use hand gestures to communicate with Ms. Ahmed, which she inferred as the supervisor not believing Ms. Ahmed spoke English; (5) the direct supervisor denied Ms. Ahmed’s request to be relieved without pay for a few hours on a major Muslim holiday, despite two other Muslim employees supervised by other managers being given the day off; (6) the direct supervisor made an allegedly ​“condescending” and ​“judgmental” comment about Arabic women wearing a head covering; (7) the supervisor also made a comment regarding terrorists; (8) the supervisor refused to allow Ms. Ahmed to take chocolate from the supervisor’s office, despite allowing other employees to do so; and (9) the supervisor reprimanded Ms. Ahmed for leaving early during inclement weather, despite Ms. Ahmed having permission to do so. ### **The District Court’s Decision** The district judge explained that Ms. Ahmed had a ​“weak case.” Despite this view, the judge stated he was ​“right on the knife’s edge” of either dismissing the case or allowing it to go to a jury. Ultimately, the judge dismissed the hostile work environment claim since Ms. Ahmed could only point to a few incidents over the course of her three-month employment period in support of her claim. The district judge held this did not show there was a ​“steady barrage of opprobrious racial comments” to support a hostile work environment claim. ### **The Second Circuit’s Reversal** The Second Circuit took a different view from the district court and found that the knife’s edge favored Ms. Ahmed. The Second Circuit was persuaded by the claims that the vice president ​“constantly” told Ms. Ahmed to remove her hijab, that he referred to the hijab as a ​“rag” and had demeaned Ms. Ahmed’s race, ethnicity, and religion. They also credited her claim that the vice president made a derogatory comment towards Ms. Ahmed during her interview (that occurred on September 11, 2013) referencing ​“terrorism.” The Court held that this evidence, together with the comments and conduct of Ms. Ahmed’s supervisor, was enough to allow the case to proceed to a jury since it may show a hostile work environment. ### **Employer Takeaways** This decision should serve to remind employers of the important lesson that there is no bright line rule as to what constitutes a hostile work environment, and even a few comments over a short period can be enough to support a claim. Judges are forced to finely parse evidence and compare it to an ever-changing body of case law. When a judge has to engage in these fact-specific inquiries, they are more likely to allow the case to go to trial for a jury to sort out the evidence. Once the case is in the hands of a jury, all bets are off.The first and best solution is prevention so that these incidents don’t happen. You need: - **Clear** and **simple** policies, which are displayed and posted in multiple venues in the workplace; - The next thing you need is training. You cannot do enough training of **all** managers and any employee who does interviews. They must understand that any ​“joke” or ​“innocent” comment can be misunderstood. Second, train them to warn colleagues when a conversation is going astray; - Finally, you need a **clear** and **simple** complaint procedure, giving employees multiple avenues to complain, and you need to respond to complaints, promptly investigate and take **real action** to remediate the allegations. Employers who are not proactive to ensure these incidents don’t happen in the first place may find themselves facing a lawsuit where, as this case shows, the outcome is entirely unpredictable. - Share this entry - - - - - [ View entry pdf ](https://s3.amazonaws.com/cdn.kelleydrye.com/content/uploads/pdf-snapshots/the-knifes-edge-second-circuit-dulls-the-standard-of-proof-needed-for-a-hostile-work-environment-20230925205250.pdf) ### Search Blog ### Subscribe ### Explore Topics - [Discrimination](https://www.kelleydrye.com/viewpoints/blogs/labor-days/discrimination) ### Related Services - [Employment Litigation](https://www.kelleydrye.com/practices/employment-litigation) - [Employment and Employee Benefits](https://www.kelleydrye.com/practices/employment-and-employee-benefits) - [Labor and Employment Counseling and Compliance](https://www.kelleydrye.com/practices/labor-and-employment-counseling-and-compliance)