In Barney v. H.E.L.P. Homeless Service Corporation, 19 Civ. 5959, 2021 WL 4267629 (S.D.N.Y. Sept. 20, 2021), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s claim sexual orientation-based hostile work environment asserted under the New York City Human Rights Law.
Notably, the court granted defendant’s motion for summary judgment on plaintiff’s hostile work claims asserted under federal law (Title VII of the Civil Rights Act of 1964) and state law (the New York State Human Rights Law) – and, thus, illustrates the breadth of the city law relative to its federal and state counterparts.
After concluding that plaintiff’s federal and state hostile work environment claims did not survive summary judgment, the court explained:
Plaintiff’s hostile work environment claim survives under the more forgiving NYCHRL standard. Under this standard, Plaintiff must establish that he was subjected to “ ‘unequal treatment’ based upon membership in a protected class.” Fattoruso, 873 F. Supp. 2d at 578 (emphasis omitted). As discussed further below, the Court acknowledges that a factual dispute exists as to whether Plaintiff was terminated due to his sexual orientation. In so doing, the Court “has already determined that a jury could conclude [that the plaintiff] was treated ‘less well’ on account of that identity.” Sandler, 2018 WL 4636835, at *11. The question remaining in the hostile work environment analysis is therefore whether the “conduct complained of” merely consisted of “petty slights and trivial inconveniences.” Mihalik, 715 F.3d at 111.
Plaintiff contends that during a six-week period, he had three conversations with Goodrich during which she made offensive references to gender identity and sexual orientation. (Pl. Opp. 13-14).22 “Though the NYCHRL is not a ‘general civility code,’ even a single comment can give rise to liability if it suggests discrimination.” Doran v. N.Y. State Dep’t of Health Off. of Medicaid Inspector Gen., No. 15 Civ. 7217 (PKC), 2019 WL 4735484, at *26 (S.D.N.Y. Sept. 27, 2019) (finding that plaintiff’s NYCHRL claim survived summary judgment based on supervisor’s “treatment” of plaintiff and “multiple comments” about plaintiff’s accent). While Goodrich’s comments do not rise to the level of “severe or pervasive,” the Court cannot find that they are merely “petty slights or trivial conveniences.” See, e.g., DeLuca v. Sirius SM Radio, Inc., No. 12 Civ. 8239 (CM), 2017 WL 3671038, at *20-21 (S.D.N.Y. Aug. 7, 2017) (determining that only plaintiff’s NYCHRL claim survived summary judgment where she testified that her supervisor “called her a ‘dyke,’ disparagingly called her work ‘gay,’ and referred to another individual as a ‘faggot,’ ” and that she “heard second-hand that he called his own supervisor a ‘faggot’ ”); Philip v. Gtech Corp., No. 14 Civ. 9261 (PAE), 2016 WL 3959729, at *24-25 (S.D.N.Y. July 20, 2016) (finding that single offensive comment overheard by plaintiff, combined with “secondhand evidence of racial basis,” did not meet the Title VII and NYSHRL standard, but was sufficient to sustain an NYCHRL hostile work environment claim).
The court then proceeded to analyze the viability of plaintiff’s unlawful termination and retaliation claims.