A recent New York trial court decision again underscores the breadth of the New York City Human Rights Law. The case is Davis v. Phoenix Ancient Art, decided April 22, 2013.
There, plaintiff Emily Davis alleged that she was subjected to sexual harassment and constructively discharged.
[I]n September 2010, while at an art fair in Paris, defendant Aboutaam [Phoenix’s owner and president] came to plaintiff’s hotel room, grabbed her and demanded that she sleep with him and then forcibly kissed her. Aboutaam told her not to tell anyone about the incident. …
[O]n numerous occasions during her employment, defendants’ clients who came into the art gallery openly questioned Plaintiff about her sex life in the presence of Aboutaam and … Aboutaam joined, condoned and acquiesced in the hostile environment by laughing at the comments.
The alleged harassment culminated in March 2012, when, in Aboutaam’s presence, a client asked plaintiff and her co-worker Karen Simons sexual questions. When the client and Aboutaam went into the back room, plaintiff left the gallery in order to remove herself from the inappropriate treatment by the client. The next day, Aboutaam reprimanded plaintiff for [leaving].
Plaintiff sued under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL). Defendants moved to dismiss, arguing that plaintiff failed to state a claim under either statute.
Plaintiff Failed to State a Claim Under the NYSHRL
The court agreed with defendants as to her NYSHRL claim, reasoning that she failed to allege that the harassment was “severe or pervasive” – the same standard applicable to “hostile work environment” sexual harassment claims under Title VII of the Civil Rights Act of 1964.
Here, the specific conduct alleged by plaintiff in the complaint, even if true, is legally insufficient to establish that the workplace was permeated with discriminatory intimidation, ridicule and insult, and that the alleged harassment was so severe or pervasive as to alter the conditions of her employment. …
[I]solated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment under the NYSHRL. …
Indeed, the alleged one-time incident in Paris and the clients’ sexual questions and comments, while offensive, were too isolated and occasional to rise to an actionable level under NYSHRL.
Plaintiff Stated a Claim Under the NYCHRL
The court reached the opposite conclusion, however, with respect to plaintiff’s claim under the NYCHRL, which provides a lower threshold for liability:
Unlike under the NYSHRL, to state a prima facie case under NYCHRL, a plaintiff need not demonstrate that he or she was subject to severe and pervasive sexual harassment; plaintiff need only demonstrate that he/she has been treated less well than other employees because of her/his gender. …
The Court of Appeals has emphasized that the amendment of … the NYCHRL by the Restoration Act [of] 2005 was enacted to ensure the liberal construction of the NYCHRL by requiring that all provisions of it be construed broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible. … [Q]uestions of severity or pervasiveness of the discriminatory conduct apply only to damages, not liability.
[T]he allegations of Aboutaam’s asking plaintiff to sleep with him during the Paris business trip and then forcibly kissing her, in conjunction with his participation in the clients’ questions/comments about plaintiff’s sexual life, are within the broad range of conduct that falls between severe and pervasive on the one hand and a petty or trivial inconvenience on the other.
Furthermore, while such conduct and statements may have been isolated, that is irrelevant under the NYCHRL, since … [o]ne can easily imagine a single comment that objectifies women being made in circumstances where that comment would, for example, signal views about the role of women in the workplace and be actionable. …
[T]hat the alleged comments of sexual nature were made to plaintiff or her co-worker, in plaintiff’s presence; that Aboutaam laughed and joined in with such comments; and that plaintiff felt like she was required to play along in order to keep defendants’ clients happy, signaled that defendant considered it appropriate to foster an office environment that degraded women.
Notably, the same facts that doomed plaintiff’s NYSHRL claim – namely, the “one-time” Paris incident and other “isolated” and “occasional” comments – were nevertheless sufficient to state a claim under the broader NYCHRL.