Work Assignments Based on Perceived Jewish Faith Supports Race/Religious Discrimination Claims, Court Holds

In Capek v. BNY Mellon, N.A., No. 15-cv-4155, 2016 WL 2993211 (S.D.N.Y. May 23, 2016) the court denied defendant’s motion to dismiss plaintiff’s race and religious discrimination claims.

Plaintiff alleged in her federal court complaint, e.g., that “[i]n the mistaken belief that [she] is Jewish, she was required by her managers to cultivate clients in Jewish communities” and that “defendant gave a non-Jewish lead to one of [her] non-Jewish colleagues, rather than to [plaintiff], whom defendant believed to be Jewish” resulting in loss of incentive pay. Plaintiff asserted claims under 42 USC 1981 and the NYS and NYC Human Rights Laws.

The court explained the framework for pleading the relevant claims:

To establish a prima facie case of race or religious discrimination, a plaintiff must prove that (1) she was a member of a protected class; (2) she was qualified for the position; (3) she was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination based on her membership in the protected class. The prima facie case for showing discrimination is an evidentiary standard, not a pleading requirement; at the pleading stage, a complaint must include only a short and plain statement of the claim showing that the pleader is entitled to relief.

Citing, e.g., case law and the EEOC Compliance Manual, the court initially rejected defendant’s argument that plaintiff’s complaint should be dismissed because she was not in fact Jewish:

That an employer discriminates against an employee based on a mistaken belief regarding that employee’s race (or any of the characteristics protected under Title VII) does not make the practice less damaging to the employee nor does it make the discrimination itself less worthy of redress. … Accordingly, the Court rejects Defendant’s argument that Plaintiff’s claim cannot proceed because she was merely perceived to be a member of a protected class.

The court also held that plaintiff sufficiently alleged that she suffered an “adverse employment action”:

Plaintiff has alleged that she was directed to cultivate Jewish clients and work with a Jewish Portfolio Manager. There allegations are insufficient, standing alone, to frame a material adverse action claim, as working with the employer’s target clientele and with one’s fellow employees is within the ordinary scope of employment duties. However, Plaintiff also alleges that defendant gave a non-Jewish lead to one of Capek’s non-Jewish colleagues, rather than to Capek, whom defendant believed to be Jewish. As a result, Capek lost significant incentive pay in 2013. This allegation, read in the light most favorable to Plaintiff supports a reasonable inference that business resulted from that lead and Plaintiff suffered significant diminished pay because of the assignment of that lead based on improper considerations of race. Further, it is reasonable to infer that such a loss was materially adverse in Plaintiff’s line of work, since her principal job and compensation were tied to the generation of new business. … Although Plaintiff has not identified the specific client or explained why Plaintiff believes that she was entitled to the lead, Plaintiff is entitled to the benefit of reasonable inferences at the pleading stage and a complaint need only include a short and plain statement of the claim showing that the pleader is entitled to relief.

Finally, since plaintiff’s allegations were sufficient under section 1981 and the NYS Human Rights Law, they were necessarily sufficient under the comparatively broader NYC Human Rights Law.

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