A recent case, Jia v. China Renaissance Securities (US) Inc., No. 158516/2018, 2021 WL 4553665 (N.Y. Sup Ct, New York County Oct. 05, 2021), illustrates the difference between the New York State Human Rights Law (NYSHRL) and the comparatively-broader New York City Human Rights Law (NYCHRL). Here, the plaintiff’s claims fail under the former but succeed (at the summary judgment stage) under the latter.
The court explained:
An inference of discrimination can be demonstrated by, among other things, the employer’s criticism of the plaintiff’s performance in class-centrically degrading terms, its invidious comments about others in the employee’s protected class, more favorable treatment of employees not in the protected class, or the sequence of events leading to the employee’s discharge or other adverse action (Littlejohn v City of N.Y., 795 F3d 297, 312 [2d Cir 2015]; Mandell v County of Suffolk, 316 F3d 368, 379 [2d Cir 2003]).
Jia alleges that because she was a woman, she was constantly reprimanded and ultimately fired for engaging in the same conduct as the males in her department. One example is her assertion that male co-workers were free to send emails with market chatter, internal emails to outside parties, and that they contacted her clients. She makes a prima facie case by establishing sufficient facts “to create a legally mandatory, rebuttable presumption” that defendants discriminated against her because she was a female (see Sogg v American Airlines, Inc., 193 AD2d 153, 156 n 2 [1st Dept 1993] [citation and quotation marks omitted], lv denied 83 NY2d 754, rearg denied 83 NY2d 954 ; see also Melman, 98 AD3d at 122).
Defendants overcome the prima facie case under the NYSHRL by showing that plaintiff was terminated for a legitimate reason. Defendants set forth facts establishing that plaintiff’s employment was terminated as a result of her: (i) failure to follow explicit directives from Hong and other senior executives; (ii) inability to respect boundaries with co-workers; and (iii) compliance-related issues, such as claiming to be part of both sales and syndicate.
A plaintiff and his/her co-workers must be “similarly situated in all material aspects.” That is, there must be “a reasonably close resemblance of the facts and circumstances; the situations of the individuals do not have to be identical” (Jones v Yonkers Pub. Schs., 326 F Supp 2d 536, 545 [SD NY 2004] [internal citations and quotation marks omitted]). The other employees must be subject to the same standards as the plaintiff and the plaintiff’s objected-to conduct must have been comparable to conduct that went undisciplined (id.).
Defendants point out that while Jia’s comparators are salespersons in S&T, she does not otherwise show that they and she were similarly situated. One example is the assertion that Jia sent out the unicorn email after it was extensively criticized, and she disregarded Hong’s instructions about contacting a client. Plaintiff does not show that a male co-worker sent out an email containing the same degree of objectionable content or sent out other similarly objectionable emails. Nor does she show that other salespersons disregarded their superiors’ suggestions and instructions. The court agrees with defendants that, under the NYSHRL, plaintiff fails to raise an issue of fact as to whether her termination was due to gender bias.
Under the NYCHRL, however, plaintiff shows an issue of fact as to whether defendants had mixed motives for her termination and treatment and whether she was treated less well than other employees due to her gender. Plaintiff’s allegations that the men did some of the same actions for which she was reprimanded establish that her termination and the criticism leveled against her may have been partly motivated by gender. From this evidence, a reasonable factfinder could infer that gender played a role in plaintiff’s treatment