Plaintiff States Hostile Work Environment Sexual Harassment Claim; Alleges She Was Called a “Slut” and “Dick Climber”

In Tulino v. City of New York, No. 15-CV-7106 (JMF), 2016 WL 2967847 (S.D.N.Y. May 19, 2016), the court held that plaintiff sufficiently alleged a gender-based hostile work environment claim under the NYC Human Rights Law.

In her amended complaint, plaintiff alleged (among other things) that defendant “created and perpetuated a culture that essentially required female employees to perform sexual favors or engage in sexualized conduct to advance their careers” and that plaintiff had been called a “slut” and a “dick climber” who was accused of “advanc[ing] only because she was having an affair with [her former supervisor, defendant Shaazad] Ali.”

The court reviewed the pleading standards applicable to claims under the NYCHRL:

To state a claim for discrimination under the NYCHRL, a plaintiff must allege facts plausibly suggesting differential treatment of some degree based on a discriminatory motive; the NYCHRL does not require either materially adverse employment actions or severe and pervasive conduct. To state a hostile work environment claim under the NYCHRL, a plaintiff must simply allege facts tending to show they were subject to unwanted gender-based conduct. Significantly, the NYCHRL imposes liability for harassing conduct even if that conduct does not qualify as severe or pervasive, and questions of severity and pervasiveness go only to the question of damages, not liability. Nevertheless, even under the NYCHRL, petty, slight, or trivial inconvenience[s] are not actionable.

Applying the law, the court held:

Plaintiff states a hostile work environment claim under the NYCHRL. According to the Complaint, as Plaintiff continued to advance in her career at SBS, her coworkers behaved antagonistically towards her because they believed her success was “based on ‘favoritism’ and alleged sexual favors.” (See Am. Compl. ¶ 48; see also, e.g., id. ¶ 42 (alleging that the Defamation Defendants “began calling Plaintiff a ‘whore’ and insisting that she had sex with her supervisors in order to remain employed”); id. ¶ 51 (claiming that the Defamation Defendants “constantly made statements that Plaintiff was ‘a slut paid with city money,’ insinuating that she received raises and additional assignments in exchange for sex with supervisors”). Additionally, the thrust of Plaintiff’s Complaint is that women (but not men) who advanced or were successful at SBS were automatically assumed to be engaged in sexual relationships with their supervisors because it was believed that “younger female employees were required to have affairs with male SBS leaders if they wished to remain employed.” (See id. ¶ 38). In other words, Plaintiff alleges that it was only because she is a woman that coworkers were antagonistic to her success and assumed that she performed sexual favors for her supervisors. Taken together and assumed to be true, those allegations plausibly suggest that Plaintiff was subject to “differential treatment” and that such differential treatment was on account of her sex.

Plaintiff stated an “aiding and abetting” claim under the NYCHRL, as she sufficiently alleged that the defendants “actively participated in a violation of the law.” The court reached the opposite conclusion, however, under the New York State Human Rights Law, since she abandoned her discrimination and hostile work environment claims under that statute, and thus it was “unclear what unlawful conduct the [defendants] aided and abetted.”

The court held that plaintiff failed to sufficiently allege a failure-to promote claim, noting that she admitted “that she never applied for a known vacant position, and does not allege that any vacancy was filled without being posted.” While plaintiff alleged that she was “denied a promotion,” she “does not state what that position was, does not state that she was qualified for it, and gives no indication that there was even any vacant position available at the time.”

Plaintiff also sufficiently alleged unequal gender pay claims under the Equal Pay Act and the New York Labor Law, as her complaint “includes extensive allegations of male employees who performed tasks similar to those Plaintiff performed and who were paid more than Plaintiff.” The law does not, contrary to defendants’ argument, require plaintiff to “allege a history or past practice of paying other female employees less than men or that any lower pay was motivated by hostile animus towards women” under the EPA or the NY Labor Law.

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