In Cunliffe v. Sandberg, No. 150610/2022, 2022 WL 2343202 (N.Y. Sup Ct, New York County June 28, 2022), the court, inter alia, held that plaintiff sufficiently alleged color discrimination in violation of the New York State Human Rights Law (NYSHRL).
This decision is interesting and instructive, for at least the reason that it is one of those interpreting the recently-amended NYSHRL’s hostile work environment provision.
From the decision:
As to plaintiff’s Third Cause of Action, it is unlawful discriminatory practice “for an employer . . . to subject any individual to harassment because of the individual’s . . . color” (Executive Law § 296[h]). To plead an actionable cause of action for hostile work environment for claims filed on or after October 11, 2019, a plaintiff must allege she was subjected to “inferior terms, conditions or privileges of employment” because of membership in a protected category; plaintiff need not show that the conduct was severe or pervasive (id.; 2B NY PJI 9:5 at 952-953). Employment discrimination cases are “generally reviewed under notice pleading standards” (Vig v New York Hairspray Co., L.P., 67 AD3d 140, 145 [1st Dept 2009]).
Defendant argues that one stray remark — that Plaintiff’s face “is the same color as [Defendant’s] poop” — made in an over five-year employment relationship could not be said to create a hostile work environment. Plaintiff argues that to determine whether there is a hostile work environment, this comment should be viewed in totality with defendant’s encouragement of her son and the other allegations regarding defendant’s conduct (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310 ).
Under the NYSHRL’s current standard, defendant’s comment about the color of plaintiff’s face and her encouragement of her son to make similar comments on several occasions are sufficient to state a claim for hostile work environment.
Based on this, the court concluded that “at this early stage, plaintiff has sufficiently pled that she was subjected to ‘inferior terms, conditions or privileges of employment’ because of her skin color.”