In Wray v. Westchester Medical Center Advanced Physician Services, P.C., et al, 21-CV-00394 (PMH), 2022 WL 3214924 (S.D.N.Y. Aug. 9, 2022), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s race-based hostile work environment claims asserted under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.
As to Title VII, the court explained:
Notwithstanding the fact that the specific events were sometimes separated by months or years, given Amendola’s purportedly endless commentary about black people and her behavior directed toward Plaintiff (or other black people), the inference linking conduct to race is apparent—and it is entirely plausible that the totality of these circumstances would allow a reasonable employee to conclude that Plaintiff’s conditions of employment were altered for the worse. See Cano v. SEIU Loc. 32BJ, No. 19-CV-08810, 2021 WL 4927166, at *6 (S.D.N.Y. June 15, 2021) (“[W]hether conduct is severe or pervasive enough to successfully state a claim for hostile work environment is generally inappropriate to determine on a motion to dismiss.” (citing Amaya v. Ballyshear LLC, 295 F. Supp. 3d 204, 224 (E.D.N.Y. 2018)), adopted by 2021 WL 4480274 (S.D.N.Y. Sept. 30, 2021); Bernardi v. New York State Dep’t of Corrs., No. 19-CV-11867, 2021 WL 1999159, at *7 (S.D.N.Y. May 19, 2021) (“He claims that he experienced many such comments, and that they continued unchecked, throughout his employment, which spanned from 2002 through at least 2018. These allegations suffice at this stage to establish that the comments were sufficiently frequent, even though the Amended Complaint is not entirely specific about the exact dates of certain incidents.” (cleaned up)); cf. Rubert v. King, No. 19-CV-02781, 2020 WL 5751513, at *9 (S.D.N.Y. Sept. 25, 2020) (concluding, on a motion to dismiss in a pro se case, a plausible hostile work environment claim under 42 U.S.C. § 1981 existed where, while identifying only a single specific use of a slur, plaintiff explained that the defendant “used the word … over a prolonged period of time ….”).
The Court cannot conclude as a matter of law that Plaintiff has failed to state a Title VII hostile work environment claim. The ultimate question as to whether the conduct that actually transpired is of a vintage that would be considered objectively hostile may be revisited after the close of discovery. The motion to dismiss the Title VII hostile work environment claim is denied.
As to plaintiff’s claim under the NYS Human Rights Law, the court held that both parties failed to apply the (relatively) new standard for hostile work environment claims, mandating denial of their motion as to that claim as well.
The court explained:
Neither Plaintiff nor Defendants applied the proper standard for a NYSHRL hostile work environment claim. For those claims accruing after October 19, 2019—like the one at issue here—New York State law instructs that it is unlawful for:
an employer … to subject any individual to harassment because of an individual’s … race … [or] sex … regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims. Such harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories…. It shall be an affirmative defense to liability under this subdivision that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences.
N.Y. Exec. Law § 296(1)(h). This amendment “eliminate[s] the requirement that harassing or discriminatory conduct be severe or pervasive for it to be actionable and … adopt[s] instead a more protective standard that prohibits conduct that results in inferior terms, conditions, or privileges of employment.” Maiurano v. Cantor Fitzgerald Sec., No. 19-CV-10042, 2021 WL 76410, at *3 n.2 (S.D.N.Y. Jan. 8, 2021) (internal quotation marks omitted)); see also McHenry v. Fox News Network, LLC, 510 F. Supp. 3d 51, 68 (S.D.N.Y. 2020) (explaining that “the NYSHRL was amended to direct courts to construe the NYSHRL, like the NYCHRL, liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws … worded comparably … have been so construed” (internal quotation marks omitted)).
Specifically, defendants – rather than applying this new liberal standard – “operated under the assumption that the NYSHRL hostile work environment claim rose and fell with the now-by-comparison heightened standard imposed by Title VII.” Accordingly, the court was “unable to conclude that they have satisfied their burden of proof on this motion.”