The First Department, reversing Supreme Court, determined the sexual-orientation-based employment discrimination and retaliation causes of action (pursuant to the NYS and NYC Human Rights Law) should not have been dismissed. Plaintiff had once worked as an NYPD police officer and subsequently for several other law enforcement entitles, and had always passed the psychological tests. Plaintiff’s application to work once again for the NYPD was denied, based on a finding plaintiff was psychologically unfit. Plaintiff had, in 2007, brought a discrimination action against the NYPD and that prior action was cited by the NYPD as evidence of plaintiff’s inability to deal with stress (which supported the retaliation cause of action):
The parties do not dispute that plaintiff has sufficiently pleaded the first three elements of discrimination, to wit, plaintiff is part of a protected class due to his sexual orientation, he was qualified for the position of police officer, having previously served for seven years before voluntarily resigning, and he was treated adversely by having a psychological hold placed on his application and then being found to have failed the evaluation. … Plaintiff alleged that he had passed six prior law enforcement psychological evaluations, in New York, California, Arizona, and Missouri, before defendants deemed him psychologically unfit for a position with the NYPD, and that in finding others psychologically fit defendants had given preferential treatment to similarly situated heterosexual applicants. Plaintiff further alleged that he was the only applicant whose application had been placed on a psychological review for over 15 months.
… [Plaintiff] submitted the psychological report of his independent clinical psychologist demonstrating his fitness to serve. …
The foregoing, taken together, and affording plaintiff the benefit of every favorable inference, establishes prima facie that defendants discriminated against plaintiff on account of his sexual orientation in finding him psychologically unfit to serve. Harrington v City of New York, 2018 NY Slip Op 00381, First Dept 1-23-18
EMPLOYMENT LAW (DISCRIMINATION, PLAINTIFF’S SEXUAL ORIENTATION DISCRIMINATION AND RETALIATION CAUSES OF ACTION AGAINST THE NYPD SHOULD NOT HAVE BEEN DISMISSED, ALTHOUGH PLAINTIFF HAD ROUTINELY PASSED PSYCHOLOGICAL EXAMS IN THE PAST, THE NYPD FOUND HIM PSYCHOLOGICALLY UNFIT (FIRST DEPT))/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION, PLAINTIFF’S SEXUAL ORIENTATION DISCRIMINATION AND RETALIATION CAUSES OF ACTION AGAINST THE NYPD SHOULD NOT HAVE BEEN DISMISSED, ALTHOUGH PLAINTIFF HAD ROUTINELY PASSED PSYCHOLOGICAL EXAMS IN THE PAST, THE NYPD FOUND HIM PSYCHOLOGICALLY UNFIT (FIRST DEPT))/SEXUAL ORIENTATION (EMPLOYMENT DISCRIMINATION, PLAINTIFF’S SEXUAL ORIENTATION DISCRIMINATION AND RETALIATION CAUSES OF ACTION AGAINST THE NYPD SHOULD NOT HAVE BEEN DISMISSED, ALTHOUGH PLAINTIFF HAD ROUTINELY PASSED PSYCHOLOGICAL EXAMS IN THE PAST, THE NYPD FOUND HIM PSYCHOLOGICALLY UNFIT (FIRST DEPT))/EMPLOYMENT DISCRIMINATION (SEXUAL ORIENTATION, HUMAN RIGHTS LAW, PLAINTIFF’S SEXUAL ORIENTATION DISCRIMINATION AND RETALIATION CAUSES OF ACTION AGAINST THE NYPD SHOULD NOT HAVE BEEN DISMISSED, ALTHOUGH PLAINTIFF HAD ROUTINELY PASSED PSYCHOLOGICAL EXAMS IN THE PAST, THE NYPD FOUND HIM PSYCHOLOGICALLY UNFIT (FIRST DEPT))/RETALIATION (EMPLOYMENT DISCRIMINATION, HUMAN RIGHTS LAW, PLAINTIFF’S SEXUAL ORIENTATION DISCRIMINATION AND RETALIATION CAUSES OF ACTION AGAINST THE NYPD SHOULD NOT HAVE BEEN DISMISSED, ALTHOUGH PLAINTIFF HAD ROUTINELY PASSED PSYCHOLOGICAL EXAMS IN THE PAST, THE NYPD FOUND HIM PSYCHOLOGICALLY UNFIT (FIRST DEPT))