Lesbian Professor, Denied Tenure, Plausibly Alleges Discrimination Under the NYS Human Rights Law Against Bard College

In Luka v. Bard College et al, No. 15-cv-4598, 2017 WL 2839641 (S.D.N.Y. June 29, 2017), the court held, inter alia, that plaintiff sufficiently alleged gender discrimination under the New York State Human Rights Law (NYSHRL). This decision is instructive on how courts apply pleading standards to such claims.

The court summarized the law:

To state a claim for gender discrimination under the NYSHRL, a plaintiff must plausibly allege that she is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent.

Applying the law, the court held that plaintiff met this standard. Judge Carter explained:

In support of her claim, Plaintiff alleges that [defendant] Scalzo “regularly” referred to Plaintiff and her partner as a “bitch” and, on one occasion, commented that Plaintiff seemed like she was having a “hormonal surge.” [] Separate from Scalzo’s behavior towards her, Plaintiff alleges that Scalzo also had a history of gender-biased decisionmaking of which Bard was aware. In particular, she alleges that, at some point prior to her own tenure application, Nancy Darling was told not to stand for tenure under circumstances that made Dominy suspect Scalzo was discriminating against women, insinuating that it was Scalzo who discouraged Darling. [] [Jane Doe][1]Ed. Note: This person’s full name appears in the court’s opinion, but has been replaced as a courtesy and in response to a request from a colleague. also allegedly experienced gender-based harassment from Scalzo that [Jane Doe] believed was similar to his treatment of Plaintiff. [] Finally, Plaintiff alleges that, after she left Bard, the Psychology Program hired only men. []

While, as Defendants argue, calling Plaintiff or her partner a “bitch” and making a disparaging comment about Plaintiff’s “hormonal surge,” could very well be considered “stray remarks,” which have no remedy in the law, unlike with Plaintiff’s disability discrimination claims, here, she has alleged a great deal more relevant conduct by Scalzo than these remarks. [] First, in contrast to Scalzo’s alleged comments regarding Plaintiff’s mental health made three years prior to the 2013 tenure review, Plaintiff alleges that Scalzo “regularly” referred to her as a “bitch.” [] By definition, then, these comments occurred closer in time to Plaintiff’s 2013 tenure review.

Second, Plaintiff alleges that Scalzo engaged in gender-biased conduct in connection with Darling’s tenure application and sexually harassed [Jane Doe], itself a form of gender-discrimination, albeit a different type than the discrimination Plaintiff allegedly experienced. [] Although Defendants highlight other facts alleged in the Complaint that might suggest a lack of gender bias (e.g., Bard awarded other women tenure during the same time period and women were part of the tenure review process), [] drawing all reasonable inferences Plaintiff’s favor, these facts do not so negate the gender-biased conduct Plaintiff described to render her allegations implausible.

It also highlighted the connection between gender discrimination and sexual orientation discrimination claims, citing the Second Circuit’s recent decision in Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 201 n.2 (2d Cir. 2017) for the proposition that

courts should not rely on the mere fact that a complaint alleges sexual orientation discrimination to find that a plaintiff fails to state a separate claim for gender stereotyping discrimination, but should instead independently evaluate the allegations of gender stereotyping.

While plaintiff here did not assert a “gender stereotyping” claim, her “status as a lesbian practically necessitates her status as a woman, whether she is one that ‘presents’ as stereotypically feminine or not.”

The court concluded that “[d]espite the interrelationship of her two claims, both can survive a motion to dismiss if the complaint contains sufficient facts independent of a sexual orientation discrimination claim to plead a plausible claim of gender discrimination” and that here, plaintiff has done so.

1 Ed. Note: This person’s full name appears in the court’s opinion, but has been replaced as a courtesy and in response to a request from a colleague.
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