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THE HOSTILE WORK ENVIRONMENT ALLEGATIONS STATED CLAIMS UNDER THE STATE AND CITY HUMAN RIGHTS LAW (HRL); THE SEXUAL HARASSMENT ALLEGATIONS STATED A CLAIM UNDER ONLY THE CITY HRL; THE CONTINUING VIOLATION DOCTRINE DID NOT APPLY TO ISOLATED STATEMENTS MADE OUTSIDE THE STATUTE OF LIMITATIONS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff stated a hostile work environment claim under the state and city Human Rights Law (HRL) and sexual harassment claim under the city, but not the state, HRL: The isolated statement made outside the statute of limitations were not subject to the continuing violation doctrine:

Plaintiff’s allegations, that several times a week over a period of at least two years, plaintiff’s coworker spoke to him in a mock Chinese accent, told plaintiff to “open your eyes,” and tormented him about his mandatory drug testing in a sexually and racially charged manner, are sufficient to state a hostile work environment claim based on national origin discrimination under both the State and City HRLs … .

… [T]he allegations that his coworker regularly made statements about plaintiff’s penis size when plaintiff took bathroom breaks or reported for drug testing “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,” such that they are sufficient under the City HRL but not under the State HRL … . The continuing violation doctrine does not apply to the isolated statements made outside the limitations period because they do not form part of “a single continuing pattern of unlawful conduct extending into the [limitations] period . . . , but rather discrete events, involving different actors, occurring months to years apart” … . Lum v Consolidated Edison Co. of N.Y., Inc., 2022 NY Slip Op 05594, First Dept 10-6-22

Practice Point: The allegations that a coworker spoke using a mock Chinese accent and told plaintiff “open your eyes” stated hostile work environment claims under the state and city Human Rights Law (HRL). The allegations that a coworker made comments about the size of plaintiff’s penis stated a sexual harassment claim under the city, but not the state, HRL. Isolated statements made outside the statute of limitations were not subject to the continuing violation doctrine.

 

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