Gender/Pregnancy Discrimination Claims Proceed Against Shake Shack et al

In Farmer v. Shake Shack Enterprises, LLC et al, 2020 WL 4194860 (S.D.N.Y. July 21, 2020) (J. Engelmayer), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claims of pregnancy discrimination under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.

After summarizing the applicable substantive and procedural legal framework, the court applied the law to the facts:

The facts alleged in the AC strongly support the necessary causal inference. First, defendants’ comments about Farmer’s work and the alleged progression of events support an inference that defendants acted with discriminatory intent in terminating Farmer. The AC alleges that defendants, sometimes overtly referring to Farmer’s pregnancy, began to question and harass her shortly after she told co-workers and managers that she was pregnant. See AC ¶¶ 33–40. In late November 2018, after hearing of the pregnancy, Cordova questioned Farmer’s ability to continue working, id ¶¶ 38–39, and, in that same conversation, a regional manager stated that “it would not be best for business” if Farmer’s performance were lacking, id. ¶ 40. Cordova also explicitly reprimanded Farmer for not disclosing her pregnancy earlier, id. ¶¶ 37–38, and suggested that she file for short-term disability, id. ¶¶ 42–43. The AC further alleges that, in mid-December 2018, other managers were displeased with Farmer’s complaints about feeling overheated in the back of the house, id ¶¶ 51–53. And, in early January 2019, Cordova questioned Farmer about her inability to lift and restock inventory and did not believe her when she said the difficulty was because of her pregnancy. Id. ¶¶ 54–57. Purportedly disbelieving that she was pregnant, Cordova demanded that Farmer, within one day, bring in paperwork to prove her pregnancy. See id. ¶¶ 56–60. And in the very conversation in which Farmer was fired, Cordova alluded again to the pregnancy, stating that he did not credit the documentation she had supplied of her pregnancy and that he believed she simply could not keep up with the physical requirements of the work. Id. ¶¶ 67–70.

These events, as alleged, played out over a short period, such that the factor of temporal proximity supports Farmer’s claim that the firing was motivated by discrimination. Little over a month passed between late November 2018, when Farmer told Cordova and others that she was pregnant, see AC ¶¶ 33–35, and January 5, 2020, when Cordova fired Farmer, see id. ¶¶ 63–70. This falls well within the two-month period in which courts frequently find a plausible inference of causation in discrimination cases. See, e.g., Asmo, 471 F.3d at 594 (termination within two months of disclosing pregnancy); Lenzi, 944 F.3d at 108 (termination less than a month after disclosing pregnancy); Smith v. K & F Indus., Inc., 190 F. Supp. 2d 643, 649 (S.D.N.Y. 2002) (poor performance review one month after disclosing pregnancy); Flores v. Buy Buy Baby, Inc., 118 F. Supp. 2d 425, 430–31 (S.D.N.Y. 2000) (termination approximately one month after disclosing pregnancy); Klausner v. Indus. Risk Insurers, Inc., No. 98 Civ. 1267 (RPP), 1999 WL 476285, at *4 (S.D.N.Y. July 8, 1999) (same).

The assembled circumstances thus comfortably plead that defendants’ termination of Farmer was motivated, at least in part, by her pregnancy. Farmer has therefore adequately pled a prima facie case of sex discrimination under Title VII and the NYSHRL.

Having found that plaintiff stated a claim under federal and state law, the court concluded that she necessarily stated a claim under the broader New York City Human Rights Law (under which plaintiff “need only show differential treatment – that she [wa]s treated ‘less well’—because of a discriminatory intent.”).

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