United States: New York Appeals Court Applies Liberal Standard In Reinstating A Sex Bias Claim Under The City Human Rights Law

In a recent decision from the Appellate Division, First Department, a unanimous panel reinstated claims asserted by three plaintiffs under the New York City Human Rights Law ("NYCHRL"). The plaintiffs in Hernandez, et al. v. Kaisman, 957 N.Y.S.2d 53 (N.Y. App. Div. 2012) claimed they were subjected to a hostile work environment in violation of both the NYCHRL and the New York State Human Rights Law ("NYSHRL"). The lower court dismissed both the NYCHRL and the NYSHRL claims asserted by the plaintiffs. On appeal, however, the First Department applied a more liberal standard to reinstate plaintiffs' NYCHRL claim while, at the same time, affirming the dismissal of the plaintiffs' analogous NYSHRL claim.

The plaintiffs in Kaisman allege that Dr. Arden Kaisman ("Kaisman") created a sexually hostile work environment at the medical office which he operated and where plaintiffs worked prior to their collective departure in December 2006. More specifically, plaintiffs allege that Kaisman sent a number of offensive and lewd emails to both male and female employees, including an audio clip of a lecture given by a "professor" on the uses of a particular profane term and its sexual connotation. Plaintiffs also allege that Kaisman recommended that one of the plaintiffs obtain breast implants, touched another plaintiff's rear end, frequently walked around the office in long johns, and made various other sexually suggestive comments and gestures. Consequently, plaintiffs brought suit against Kaisman alleging that he violated the NYCHRL and NYSHRL. Kaisman moved for summary judgment dismissing plaintiffs' claims and his motion was granted by the lower court.

The lower court held that the majority of Kaisman's complained-of conduct was directed at both male and female employees and, since the conduct could be perceived as equally offensive to either sex, plaintiffs could not demonstrate that they were treated any differently due to their gender. With respect to the aforementioned conduct that was specifically directed at plaintiffs, the court found that Kaisman's alleged behavior was insufficiently severe or pervasive enough to be actionable. Significantly, while the lower court acknowledged that the Local Civil Rights Restoration Act of 2005 amended the NYCHRL to require that the law be given a more liberal construction than its state or federal counterparts, the court still held that plaintiffs' evidence did not show that they were treated less well than other employees on account of their gender and, further, that any gender-based conduct that did occur could be interpreted as no more than petty slights and trivial inconveniences.

On appeal, the First Department affirmed the lower court's holding with respect to the NYSHRL. The court explained that "[t]here is no question that the emails that defendant circulated in the office were inappropriate. However, their distribution by defendant is closer to what would be described as 'boorish' behavior than the 'severe' types of incidents which have been found to create a hostile workplace environment." Furthermore, the court found that Kaisman's behavior which was directed at plaintiffs, such as his comment about breast enhancement, was "too sporadic to be considered 'pervasive.'" Conversely, the court found that the same conduct was sufficient to survive summary judgment under the NYCHRL.

The court explained that the "severe or pervasive" standard is inapplicable to the NYCHRL. Instead, the court noted that it could "only dismiss [plaintiffs' NYCHRL claim] if we determine that this is a truly insubstantial case in which defendant's behavior cannot be said to fall within the broad range of conduct that falls between severe and pervasive on the one hand and a petty slight or trivial inconvenience on the other." Ultimately, the court found that when viewing Kaisman's dissemination of emails containing "mildly offensive sexual media," together with his sexually suggestive comments to plaintiffs, even if considered "isolated," this is not a "truly insubstantial case." "At the very least," the court concluded, Kaisman's conduct could be "characterized as having subjected plaintiffs to differential treatment" and, thus, affirming the dismissal of plaintiffs' claim would countermand the "broad remedial purposes of the [NYCHRL]."

The Kaisman decision further demonstrates that New York courts are heeding the Local Civil Rights Restoration Act of 2005 which intended that the NYCHRL would provide stronger protections than state and federal laws. Accordingly, employers can expect that New York courts will continue to analyze claims brought pursuant to the New York City Human Rights Law independently of analogous state and federal laws and will do so under a more liberal standard.

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