In Acosta v. CKR Law LLP et al, No. 156323/2019, 2021 WL 465977 (N.Y. Sup Ct, New York County Feb. 09, 2021), the court, inter alia, denied defendant’s CPLR 3211(a)(7) motion to dismiss plaintiff’s sexual orientation discrimination/hostile work environment claim asserted under the New York City Human Rights Law.
From the decision:
A central argument in defendants’ papers is the assertion that the complaint fails to state a cause of action for hostile work environment because the alleged incidents or comments, viewed alone or together, do not reach the requisite level of severe or pervasive. Contrary to defendants’ contention, however, under the NYCHRL it is not plaintiff’s burden to so plead (see Kaplan v New York City Dept. of Health & Mental Hygiene, 142 AD3d 1050, 1051 (2nd Dept 2016]).
The NYCHRL prohibits discrimination based on actual or perceived sexual orientation and uses the same standard for discrimination and hostile work environment: a plaintiff must show that she was treated less favorably because of her sexual orientation (N.Y.C. Admin. Code Section 8-107  [a]; Hernandez v Kaisman, 103 AD3d 106, 114 [1st Dept 2012]); Williams, 61 AD3d at 78-79) For liability under the NYCHL, “the primary issue for a trier of fact in harassment cases, as in other terms – and – conditions cases, is whether the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of [her sexual orientation]” (Williams, 61 AD3d at 78).
“Experience has shown that there is a wide spectrum of harassment cases falling between ‘severe and pervasive’ on the one hand and a ‘merely’ offensive utterance on the other” (Williams, 61 AD3d at 76, footnote omitted). While NYCHRL’s broader purposes “do not connote an intention that the law operates as a general civility code” (Williams, 61 AD3d at 79, internal quotation marks omitted), the “way to avoid this result is not by establishing [an] overly restrictive ‘severe or pervasive’ bar, but by recognizing an affirmative defense whereby defendants can still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider ‘petty slights and trivial inconveniences’ ” (Williams, 61 AD3d at 79-80). A contention that the behavior or statement was “a petty slight or trivial inconvenience constitutes an affirmative defense, which should be raised in the defendants’ answer, and does not lend itself to a pre-answer motion to dismiss” (Kaplan, 142 AD3d 1050 at 1051 [internal citations omitted]). Keeping in mind the “broad remedial purpose” of the NYCHRL, “questions of ‘severity’ and ‘pervasiveness’ are applicable to consideration of the scope of permissible damages, but not to the question of underlying liability” (Williams, 61 AD3d at 76, internal citation omitted)
Moreover, at this early procedural juncture, defendants’ apparent reliance on their affidavits addressing the substantive merits of the complaint is misplaced. Depending on the particular allegation, defendants, in their five affidavits/affirmations, either deny that the statement or conduct occurred or assert that there were business, legitimate and non-discriminatory reasons for such actions. For the purposes of determining this motion, however, this Court accepts as true the complaint’s allegations and draws all reasonable inferences therefrom. Accordingly, defendants’ affidavits raise and address issues that are not now before the court.
*8 In addition to defendants’ contentions that are specifically addressed, the court has considered all of defendants’ arguments in favor of dismissal of the hostile work environment claims and denies the motion. Determining this motion under the standards for a CPLR 3211 (a) (7) motion generally and the lenient notice pleading standard for discrimination cases in particular, this Court finds that the complaint adequately pleads that plaintiff was subject to a hostile work environment under the NYCHRL. The allegations taken from the four corners of the complaint and the inferences therefrom, when viewed under the totality of the circumstances, sufficiently plead that several incidents occurred within an approximate three – month period, and that plaintiff was treated less well than other employees, because of her sexual orientation. Whether plaintiff will ultimately prevail is not relevant on this pre-answer motion to dismiss.