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THE DIFFERING CRITERIA FOR GENDER DISCRIMINATION, HOSTILE WORK ENVIRONMENT AND RETALIATION UNDER THE NEW YORK STATE AND NEW YORK CITY HUMAN RIGHTS LAW CAREFULLY EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, carefully laid out the criteria for gender diiscrimination, hostile work environment and retaliation under the NYS Human Rights Law (NYSHRL) and the NYC Human Rights Law (NYCHRL). The gender discriimination claims should have been dismissed, but the hostile work environment and retaliation claims properly survived summary judgment. The decision is too detailed to fairly summarize here and should be consulted for its explanation of the differing criteria under the NYS and NYC Human Rights Law. With respect to gender discrimination, the court wrote:

[Under the NYSHRL] a triable issue of fact regarding the falsity of the appellants’ proffered reasons for the employment action is not enough; there must be evidence “both that the reason was false, and that discrimination was the real reason” … . Here, the parties’ evidentiary submissions reveal no evidence that gender discrimination was the real reason for the challenged employment actions. …

… [A]n action alleging discrimination in violation of the NYCHRL “‘must be analyzed under both the familiar framework of McDonnell Douglas Corp. v Green (411 US 792 [1973]) and under the newer mixed motive framework, which imposes a lesser burden on a plaintiff opposing such a motion'” (Sanderson-Burgess v City of New York, 173 AD3d 1233, 1235 …). “‘Summary judgment dismissing a claim under the NYCHRL should be granted only if no jury could find [the] defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, direct evidence, or some combination thereof'” … . Here, the plaintiff … failed to raise a triable issue of fact as to whether the conduct was a pretext to mask a discriminatory intent or was in part motivated by discrimination … . Bilitch v New York City Health & Hosps. Corp., 2021 NY Slip Op 03300, Second Dept 5-26-21

 

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