Citing “Expendable Indian” Comment, Court Finds Plaintiff Plausibly Alleged Race/National Origin Discrimination Claim Under the NYC Human Rights Law

In Shukla v. Deloitte Consulting LLP, 2020 WL 3181785 (S.D.N.Y. June 15, 2020), the court held, inter alia, that plaintiff sufficiently alleged race/national origin discrimination under the New York City Human Rights Law.

The court also dismissed several of plaintiff’s other claims, including his gender, race and national origin discrimination claims under Title VII, Section 1981 and the New York State Human Rights Law, as well as his hostile work environment claims under Title VII, Section 1981 and the NYSHRL based on gender, disability, race, and national origin.

The court summarized the standards for making out a claim under the New York City Human Rights Law, which is broader than its federal and state counterparts:

The NYCHRL forbids “an employer or an employee or agent thereof, because of the actual or perceived … race, … national origin, gender, [or] disability … [t]o discriminate against such person in compensation or in terms, conditions or privileges of employment.” N.Y.C. Admin. Code, § 8-107(1)(a)(3). Claims under the NYCHRL must be analyzed “separately and independently from any federal and state law claims” and construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Mihalik v. Credit Agricole Cheuvreux N. Am. Inc., 715 F.3d 102, 109 (2d Cir. 2013) (internal citations and quotations omitted). To state a claim for discrimination under the NYCHRL, a plaintiff need only show that he was treated “less well” at least in part because of his protected status. Mihalik, 715 F.3d at 110. Thus, “[u]nder the NYCHRL, [ ] unlike under Title VII and the NYSHRL, there is no distinction between a claim premised on the creation of a hostile work environment (a species of harassment claim) and one premised on unlawful discrimination[.]” Rothbein v. City of New York, No. 18-CV-05106 (VEC), 2019 WL 977878, at *9 (S.D.N.Y. Feb. 28, 2019) (citing cases). “Instead, a focus on unequal treatment based on gender [or another protected class]—regardless of whether the conduct is ‘tangible’ (like hiring or firing) or not—is in fact the approach that is most faithful to the uniquely broad and remedial purposes of the [NYCHRL].” Mihalik, 715 F.3d at 114 (quoting Williams v. New York City Hous. Auth., 61 A.D.3d 62, 79 (1st Dep’t 2009)).

While the court held that plaintiff could not make out a gender-based discrimination claim under the NYCHRL, he met that statute’s standards with respect to his claim of discrimination based on race/national origin.

Specifically, plaintiff alleged that he was called an “expendable Indian” by Deloitte senior manager at a time when plaintiff was being removed from a project. This allegation, held the court, was sufficient to support a plausible claim that plaintiff was “treated less well” due to his race and/or national origin. In support, the court cited the Second Circuit’s decision in Mihalik v. Credit Agricole Cheuvreux N. Am. Inc., 715 F.3d 102 (2d Cir. 2013) for the proposition that “even a single comment may be actionable in the proper context.”

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