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PLAINTIFF’S FIRING FOR WORKPLACE DISRUPTION AND CUSTOMER RELATIONS STEMMING FROM PLAINTIFF’S PERCEIVED INVOLVEMENT IN A NOTORIOUS ASSAULT CASE [HIS CONVICTIONS WERE VACATED] DID NOT VIOLATE THE HUMAN RIGHTS LAW.

The First Department affirmed the dismissal of a former police officer’s complaint which alleged he was fired from his job at Con Edison because of his convictions, in violation of the state and city Human Rights Law. While a police officer, the plaintiff was charged with beating and sodomizing an arrestee in a notorious case. Plaintiff’s assault-related convictions were vacated and the jury deadlocked in the second trial. The only conviction which remained was for perjury. Plaintiff was fired because of workplace disruption and customer relations stemming from plaintiff’s perceived involvement in the assault. The First Department determined the firing was not the result of discrimination based upon the perjury conviction. The vacated convictions were not “convictions” covered by the statutory prohibition:

The assault-related convictions on which plaintiff was retried, and the jury deadlocked, are not covered by article 23-A [of the Correction Law], since the article applies only to individuals who “previously have been convicted,” and the vacatur of plaintiff’s prior assault convictions rendered those convictions nullities … . Although plaintiff maintains that he remains “previously … convicted,” we reject this interpretation since it would permit an employer to deny employment based on a vacated conviction in reliance on the statutory exceptions … .

The legislative intent is to rehabilitate, and therefore avoid recidivism by, “ex-offenders,” not those whose convictions have been vacated, who generally do not need rehabilitation and are not at risk of recidivism … . “Although ex-offenders were urged when released from prison to find employment as a part of their rehabilitation, they had great difficulty in doing so because of their criminal records…. Failure to find employment … injured society as a whole by contributing to a high rate of recidivism … Thus, [article 23-A] sets out a broad general rule that employers and public agencies cannot deny employment or a license to an applicant solely based on status as an ex-offender” … . Schwarz v Consolidated Edison, Inc., 2017 NY Slip Op 00927, 1st Dept 2-7-17

 

EMPLOYMENT LAW (DISCRIMINATION, PLAINTIFF’S FIRING FOR WORKPLACE DISRUPTION AND CUSTOMER RELATIONS STEMMING FROM PLAINTIFF’S PERCEIVED INVOLVEMENT IN A NOTORIOUS ASSAULT CASE [HIS CONVICTIONS WERE VACATED] DID NOT VIOLATE THE HUMAN RIGHTS LAW)/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION, PLAINTIFF’S FIRING FOR WORKPLACE DISRUPTION AND CUSTOMER RELATIONS STEMMING FROM PLAINTIFF’S PERCEIVED INVOLVEMENT IN A NOTORIOUS ASSAULT CASE [HIS CONVICTIONS WERE VACATED] DID NOT VIOLATE THE HUMAN RIGHTS LAW)/CONVICTIONS (HUMAN RIGHTS LAW, PLAINTIFF’S FIRING FOR WORKPLACE DISRUPTION AND CUSTOMER RELATIONS STEMMING FROM PLAINTIFF’S PERCEIVED INVOLVEMENT IN A NOTORIOUS ASSAULT CASE [HIS CONVICTIONS WERE VACATED] DID NOT VIOLATE THE HUMAN RIGHTS LAW)

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ALTHOUGH COMPLAINANT DID NOT DEMONSTRATE SHE WAS DISCRIMINATED AGAINST BY THE COOPERATIVE BASED UPON A DISABILITY, COMPLAINANT DID DEMONSTRATE THE COOPERATIVE IMPROPERLY RETALIATED AGAINST HER AFTER SHE FILED THE DISCRIMINATION COMPLAINT WITH THE NYS DIVISION OF HUMAN RIGHTS.

Although the complainant, a shareholder in a cooperative, did not demonstrate she was discriminated against when the cooperative and the board (petitioners) refused to allow her to keep a dog in her apartment, the Second Department determined she did demonstrate petitioners retaliated against her for bringing her complaint to the New York State Division of Human Rights (SDHR). Complainant alleged she was disabled and the dog helped her cope with her disabilities:

To establish that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made, the complainant was required to demonstrate that she is disabled, that she is otherwise qualified for the tenancy, that because of her disability it is necessary for her to keep the dog in order for her to use and enjoy the apartment, and that reasonable accommodations could be made to allow her to keep the dog (see Executive Law § 296[2][a]…). …

… [T]he complainant failed to present medical or psychological evidence sufficient to demonstrate that the dog was actually necessary in order for her to enjoy the apartment. Notably, the complainant had resided in the apartment for more than 20 years without the dog. …

…[T]he complainant established that she participated in the protected activity of filing an SDHR discrimination complaint against the petitioners, the petitioners were aware of this action, and there was a causal connection between the protected activity and the petitioners’ retaliatory conduct, which included taking away the complainant’s designated parking space for a nine-day period, refusing to accept her maintenance checks, filing eviction proceedings against her, falsely informing her that the SDHR had ruled in the petitioners’ favor, and directing her to immediately remove her dog from her apartment … . Matter of Delkap Mgt., Inc. v New York State Div. of Human Rights, 2016 NY Slip Op 08073, 2nd Dept 11-30-16

HUMAN RIGHTS LAW (ALTHOUGH COMPLAINANT DID NOT DEMONSTRATE SHE WAS DISCRIMINATED AGAINST BY THE COOPERATIVE BASED UPON A DISABILITY, COMPLAINANT DID DEMONSTRATE THE COOPERATIVE IMPROPERLY RETALIATED AGAINST COMPLAINANT AFTER SHE FILED THE DISCRIMINATION ACTION WITH THE NYS DIVISION OF HUMAN RIGHTS)/DISABILITIES (HUMAN RIGHTS LAW, ALTHOUGH COMPLAINANT DID NOT DEMONSTRATE SHE WAS DISCRIMINATED AGAINST BY THE COOPERATIVE BASED UPON A DISABILITY, COMPLAINANT DID DEMONSTRATE THE COOPERATIVE IMPROPERLY RETALIATED AGAINST COMPLAINANT AFTER SHE FILED THE DISCRIMINATION ACTION WITH THE NYS DIVISION OF HUMAN RIGHTS)/DISCRIMINATION (ALTHOUGH COMPLAINANT DID NOT DEMONSTRATE SHE WAS DISCRIMINATED AGAINST BY THE COOPERATIVE BASED UPON A DISABILITY, COMPLAINANT DID DEMONSTRATE THE COOPERATIVE IMPROPERLY RETALIATED AGAINST COMPLAINANT AFTER SHE FILED THE DISCRIMINATION ACTION WITH THE NYS DIVISION OF HUMAN RIGHTS)/RETALIATION (ALTHOUGH COMPLAINANT DID NOT DEMONSTRATE SHE WAS DISCRIMINATED AGAINST BY THE COOPERATIVE BASED UPON A DISABILITY, COMPLAINANT DID DEMONSTRATE THE COOPERATIVE IMPROPERLY RETALIATED AGAINST COMPLAINANT AFTER SHE FILED THE DISCRIMINATION ACTION WITH THE NYS DIVISION OF HUMAN RIGHTS)

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PLAINTIFF STATED A CAUSE OF ACTION FOR SEXUAL ORIENTATION-BASED DISCRIMINATION, DEFENDANT’S ARGUMENT THERE WAS A NON-DISCRIMINATORY REASON FOR ADVERSE ACTION SHOULD NOT BE CONSIDERED IN A CPLR 3211 (a)(7) MOTION TO DISMISS.

The First Department, reversing (modifying) Supreme Court, determined plaintiff had stated a cause of action under the New York City Human Rights Law for sexual orientation-based discrimination:

Plaintiff’s allegations that he is an openly gay man and was qualified for the positions of correction officer and captain meet the first two elements of his discrimination claim. Plaintiff’s allegations that he was written up, twice suspended, and ultimately demoted meet the third element of disadvantageous treatment … . Defendant’s argument that plaintiff has not alleged that he was treated worse than similarly situated captains — as opposed to correction officers — is unavailing. Suspension and demotion are, on their faces, adverse employment actions. Defendant’s argument is, effectively, that those actions were warranted by plaintiff’s conduct while a captain, but this argument goes more properly to the second leg of the … burden-shifting framework … , namely rebuttal of a prima facie claim of employment discrimination by showing a legitimate, nondiscriminatory reason for the adverse action, and is misplaced at this early procedural juncture. James v City of New York, 2016 NY Slip Op 07400, 1st Dept 11-10-16

EMPLOYMENT LAW (PLAINTIFF STATED A CAUSE OF ACTION FOR SEXUAL ORIENTATION-BASED DISCRIMINATION, DEFENDANT’S ARGUMENT THERE WAS A NON-DISCRIMINATORY REASON FOR ADVERSE ACTION SHOULD NOT BE CONSIDERED IN A CPLR 3211 (a)(7) MOTION TO DISMISS)/HUMAN RIGHTS LAW (NYC) (PLAINTIFF STATED A CAUSE OF ACTION FOR SEXUAL ORIENTATION-BASED DISCRIMINATION, DEFENDANT’S ARGUMENT THERE WAS A NON-DISCRIMINATORY REASON FOR ADVERSE ACTION SHOULD NOT BE CONSIDERED IN A CPLR 3211 (a)(7) MOTION TO DISMISS)/CIVIL PROCEDURE (MOTION TO DISMISS, PLAINTIFF STATED A CAUSE OF ACTION FOR SEXUAL ORIENTATION-BASED DISCRIMINATION, DEFENDANT’S ARGUMENT THERE WAS A NON-DISCRIMINATORY REASON FOR ADVERSE ACTION SHOULD NOT BE CONSIDERED IN A CPLR 3211 (a)(7) MOTION TO DISMISS)/CPLR 3211 (a)(7) (PLAINTIFF STATED A CAUSE OF ACTION FOR SEXUAL ORIENTATION-BASED DISCRIMINATION, DEFENDANT’S ARGUMENT THERE WAS A NON-DISCRIMINATORY REASON FOR ADVERSE ACTION SHOULD NOT BE CONSIDERED IN A CPLR 3211 (a)(7) MOTION TO DISMISS)

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EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY.

The First Department determined plaintiff stated causes of action for employment discrimination and retaliation under both the state and city (NYC) Human Rights Law. The court noted that claims after 2011 were time-barred under the state law, but claims going back to 2007 were timely under the city law, which allows otherwise time-barred claims which are part of a continuing course of conduct:

… [P]laintiff’s claims under the New York State HRL for failure to promote after May 23, 2011 are timely and should not have been dismissed, as plaintiff alleged sufficient facts to meet his pleading burden for purposes of this motion to dismiss … . Plaintiff’s claims for failure to promote under the City HRL were also improperly dismissed because plaintiff has adequately alleged “a single continuing pattern of unlawful conduct [starting from his first promotion rejection in 2007] extending into the [limitations] period immediately preceding the filing of the complaint” … , which permits consideration under the City HRL of all actions relevant to that claim, including those that would otherwise be time-barred … . Moreover, while, as plaintiff concedes, the continuing violations doctrine only applies to his claims of failure to promote under the City HRL … , even under the State HRL, he “is not precluded from using the prior acts as background evidence in support of a timely claim'” … . St. Jean Jeudy v City of New York, 2016 NY Slip Op 06045, 1st Dept 9-15-16

EMPLOYMENT LAW (EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY)/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY)/DISCRIMINATION (EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY)/

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COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT.

The Second Department determined plaintiff had stated causes of action for age discrimination and a hostile work environment. The court outlined the relevant law and applied the facts alleged to the legal principles. The law was described as follows:

To state a cause of action alleging age discrimination under the New York Human Rights Law (Executive Law § 296), a plaintiff must plead facts that would tend to show (1) that he or she was a member of a protected class, (2) that he or she was actively or constructively discharged or suffered an adverse employment action, (3) that he or she was qualified to hold the position for which he or she was terminated or suffered an adverse employment action, and (4) that the discharge or adverse employment action occurred under circumstances giving rise to an inference of age discrimination … . * * *

To state a cause of action alleging a hostile work environment under Executive Law § 296, a plaintiff must plead facts that would tend to show ” that the complained of conduct: (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s [protected class]'” … . The United States Supreme Court has observed that courts examining hostile work environment causes of action should consider, among other things, ” the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance'” … . Godino v Premier Salons, Ltd., 2016 NY Slip Op 05118, 2nd Dept 6-29-16

EMPLOYMENT LAW (COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)/AGE DISCRIMINATION (EMPLOYMENT LAW, COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)/HOSTILE WORK ENVIRONMENT (EMPLOYMENT LAW, COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)/HUMAN RIGHTS LAW  (EMPLOYMENT LAW, COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)

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ALLEGATIONS BY THREE FORMER EMPLOYEES DID NOT MAKE OUT A PRIMA FACIE CASE OF A HOSTILE WORK ENVIRONMENT DUE TO SEXUAL HARASSMENT.

The Third Department, reversing Supreme Court, determined the lawsuit against the employer, Ross, by three former employees should have been dismissed. The allegations made by the three employees were not sufficient to make out a prima facie case of a hostile work environment due to sexual harassment:

While Ross' alleged conduct was certainly offensive and grossly unprofessional, those aspects of it that were sexually harassing were not severe or pervasive enough to render any plaintiff's work environment objectively hostile and abusive as these terms are construed under the Human Rights Law.

In order to establish the existence of a sexually hostile work environment, an individual plaintiff must show that his or her workplace was “'permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his or her] employment and create an abusive working environment'” … . All of the circumstances must be considered, including “the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with [the plaintiff's] work performance” … . Moreover, the workplace must be both subjectively and objectively hostile. That is, a plaintiff must not only perceive that the conditions of his or her employment were altered because of discriminatory conduct, but the conduct also must have created an environment that a reasonable person would find to be hostile or abusive … . Pawson v Ross, 2016 NY Slip Op 02502, 3rd Dept 3-31-16

EMPLOYMENT LAW (ALLEGATIONS BY THREE FORMER EMPLOYEES DID NOT MAKE OUT A PRIMA FACIE CASE OF A HOSTILE WORK ENVIRONMENT DUE TO SEXUAL HARASSMENT)/HUMAN RIGHTS LAW (ALLEGATIONS BY THREE FORMER EMPLOYEES DID NOT MAKE OUT A PRIMA FACIE CASE OF A HOSTILE WORK ENVIRONMENT DUE TO SEXUAL HARASSMENT)/HOSTILE WORK ENVIRONMENT (ALLEGATIONS BY THREE FORMER EMPLOYEES DID NOT MAKE OUT A PRIMA FACIE CASE OF A HOSTILE WORK ENVIRONMENT DUE TO SEXUAL HARASSMENT)/SEXUAL HARASSMENT (EMPLOYMENT LAW, ALLEGATIONS BY THREE FORMER EMPLOYEES DID NOT MAKE OUT A PRIMA FACIE CASE OF A HOSTILE WORK ENVIRONMENT DUE TO SEXUAL HARASSMENT)

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POLICE OFFICER’S CAUSES OF ACTION FOR DISABILITY DISCRIMINATION SHOULD HAVE SURVIVED THE MOTION TO DISMISS.

The Fourth Department determined plaintiff police officer had stated causes of action for unlawful discrimination based upon a disability under the Human Rights Law and the federal Rehabilitation Act. Plaintiff was arrested for DWI and entered a rehabilitation program where he was diagnosed as suffering from post-traumatic stress disorder stemming from his work in New York City after the 9-11 attack. Plaintiff was terminated upon completion of the rehabilitation program. The city argued his termination was based on the DWI, but plaintiff alleged other officers, who were not disabled, were not terminated after committing a criminal offense. The Fourth Department noted that when the plaintiff’s and defendant’s arguments are equally supported, plaintiff must prevail in a motion to dismiss:

 

Plaintiff sufficiently stated a cause of action for disability discrimination under the Human Rights Law by alleging that: he has a disability and is therefore a member of a protected class; he is qualified for his position; he suffered an adverse employment action, i.e., termination of his employment; and the termination occurred under circumstances giving rise to an inference of discrimination … . Similarly, plaintiff sufficiently stated a cause of action for discriminatory termination under the Rehabilitation Act by alleging that: “(1) he has a disability; (2) he is otherwise qualified to perform the job; (3) he was terminated solely because of his disability; and (4) the program or activity receives federal funds” … . …

In support of those causes of action, plaintiff alleged that the City did not terminate the employment of two nondisabled employees after they were arrested for criminal misconduct, thus raising an inference that his termination was based upon his disability. The court stated in its decision that plaintiff’s allegations “equally support” the conclusions that those two employees and plaintiff were similarly situated, and that they were not similarly situated. On the motion to dismiss pursuant to CPLR 3211 (a) (7), however, facts that equally support opposing inferences must be resolved in plaintiff’s favor … . Regan v City of Geneva, 2016 NY Slip Op 01101, 4th Dept 2-11-16

 

EMPLOYMENT LAW (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/HUMAN RIGHTS LAW (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/REHABILITATION ACT (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/CIVIL PROCEDURE (WHEN THE ALLEGATIONS OF BOTH SIDES ARE EQUALLY SUPPORTED, PLAINTIFF MUST PREVAIL IN A MOTION TO DISMISS)/MUNICIPAL LAW (POLICE OFFICERS CAUSES OF ACTION FOR DISABILITY [PTSD] DISCRIMINATION SHOULD HAVE SURVIVED MOTION TO DISMISS)POLICE OFFICERS (OFFICER’S CAUSES OF ACTION FOR DISABILITY [PTSD] DISCRIMINATION SHOULD HAVE SURVIVED MOTION TO DISMISS)

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PETITIONERS, WHO HELD CATERED EVENTS, INCLUDING WEDDINGS, AT THEIR FARM, COMMITTED AN UNLAWFUL DISCRIMINATORY PRACTICE WHEN THEY REFUSED TO ALLOW RESPONDENTS’ SAME-SEX MARRIAGE AT THE FARM.

The Third Department, in a full-fledged opinion by Justice Peters, determined the State Division of Human Rights (SDHR) properly found petitioners (the Giffords) discriminated against respondents (the McCarthys) by refusing to hold the McCarthys’ same-sex marriage at the Giffords’ farm (Liberty Ridge). The Giffords held catered events on their farm, including weddings. The Third Department held the farm was “a place of public accommodation” within the meaning of the Human Rights Law (Executive law 290 [3]) and was therefore subject to the statutory prohibition of “unlawful discriminatory practice[s]” in “a place of public accommodation.” The federal and state constitutional arguments raised by the owners of the farm  (free exercise of religion, free speech, compelled speech and expressive association) were discussed in detail and rejected. SDHR’s award of $1500 each to the respondents, and the imposition of a $10,000 civil penalty on the Giffords was upheld. With respect to the definition of “a place of public accommodation,” the court explained:

Executive Law § 292 (9) “defines ‘place of public accommodation, resort or amusement’ inclusively and illustratively, not specifically, and sets forth an extensive list of examples of places within the statute” … . Such term includes “establishments dealing with goods or services of any kind” and “any place where food is sold for consumption on the premises” (Executive Law § 292 [9]). Over the years, the statutory definition has been expanded repeatedly, “provid[ing] a clear indication that the Legislature used the phrase place of public accommodation ‘in the broad sense of providing conveniences and services to the public’ and that it intended that the definition of place of accommodation should be interpreted liberally” … .

Here, Liberty Ridge’s wedding facilities fall comfortably within the broad definition of “place of public accommodation.” It is undisputed that petitioners open Liberty Ridge to the public as a venue for wedding ceremonies and receptions and offer several wedding-related event services in connection therewith. Indeed, the only wedding-related service that Liberty Ridge does not provide is an officiant for the wedding ceremony. The couples who contract to wed at Liberty Ridge’s facilities are members of the general public who, like the McCarthys, may be attracted to the farm by its broadly disseminated advertisements and website. The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as petitioners contend, remove Liberty Ridge’s facilities from the reach of the Human Rights Law; the critical factor is that the facilities are made available to the public at large… . Matter of Gifford v McCarthy, 2016 NY Slip Op 00230, 3rd Dept 1-14-16

LABOR LAW (SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION SUPPORTED BY NON-DEFECTIVE A-FRAME LADDER WHICH FELL OVER WITH PLAINTIFF HOLDING ON TO IT AFTER PLAINTIFF WAS JOLTED WITH ELECTRICITY)

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Plaintiff’s Allegations of a Hostile Work Environment and Retaliation Were Not Sufficient As a Matter of Law

The Third Department determined that plaintiff’s action against her employer (UPS) alleging sexual harassment, rising to the level of a hostile work environment, and retaliation for complaining about it, was properly dismissed. Although the complaint alleged several instances of crude and improper language and physical contact, the allegations did not, as a matter of law, describe a “hostile work environment.” Nor were the allegations of retaliation sufficient as a matter of law:

A party alleging the existence of a sexually hostile work environment must demonstrate that “‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment'” … . To determine whether a hostile work environment exists, we must consider “all the circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance'” … . The test is both subjective and objective; that is, a plaintiff must demonstrate that the conditions of his or her employment were altered as a result of the conduct he or she perceived to be abusive and that the conduct created an environment that a reasonable person would find to be hostile or abusive … . * * *

A valid claim for retaliation under the Human Rights Law exists where a party demonstrates “that (1) [he or] she has engaged in protected activity, (2) [his or] her employer was aware that [he or] she participated in such activity, (3) [he or] she suffered an adverse employment action based upon [his or] her activity, and (4) there is a causal connection between the protected activity and the adverse action”… . Minckler v United Parcel Serv., Inc., 2015 NY Slip Op 07882, 3rd Dept 10-29-15

 

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Unlike a “State Human Rights Law” Cause of Action, a “New York City Human Rights Law” Cause of Action Is Supported If Racial Bias Played “Any Role” (As Opposed to a “Motivating and Substantial Role”) In the Discriminatory Action

The plaintiff alleged he was terminated from employment due to racial bias and sued under the Executive Law (New York State Human Rights Law) and under New York City Human Rights Law. Plaintiff acknowledged that he was sleeping on the job, a legitimate reason for termination. Plaintiff’s New York State Human Rights Law cause of action was dismissed because plaintiff could not show that racial bias played a “motivating or substantial role” in the termination. But, because the criteria for a cause of action under the New York City Human Rights Law are broader, the New York City Human Rights Law cause of action survived summary judgment. Under the New York City Human Rights Law, if termination was motivated “in part” by racial bias, even though there was a legitimate reason for termination, the termination is actionable:

The Court of Appeals has recognized that the New York City Human Rights Law must be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” … . Thus, the New York City Human Rights Law is to be more broadly interpreted than similarly worded federal or State antidiscrimination provisions … . The Appellate Division, First Department, has interpreted the New York City Human Rights Law as requiring that unlawful discrimination play ” no role'” in an employment decision … . Our Court has expressed general agreement with the First Department’s interpretation of the New York City Human Rights Law … . Thus, under the broadly worded and broadly interpreted New York City Human Rights Law, if the supervisor’s decision to report the plaintiff was motivated by racial or ethnic animus, even in part, the defendant may be held liable.

The evidence undisputedly established that the plaintiff’s employment was terminated by the defendant because the plaintiff was found to be asleep while on duty, in violation of its rules. Additionally, there was evidence that the defendant had a zero-tolerance policy with respect to violations of that rule. Further, it is also not disputed that the defendant’s no-tolerance policy regarding the termination of the employment of employees found sleeping while on duty is a legitimate policy. Nevertheless, the plaintiff presented evidence that his supervisor reported him to the defendant’s management in part out of racial animus, and did not report other, non-Indian employees who were found sleeping while on duty. Thus, the plaintiff raised a triable issue of fact as to whether his supervisor’s unlawful discrimination, which is to be imputed to the defendant, played a role in the termination of the plaintiff’s employment. Accordingly, the Supreme Court erred in granting that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging a violation of the New York City Human Rights Law … . Singh v Covenant Aviation Sec., LLC, 2015 NY Slip Op 06911, 2nd Dept 9-23-15

 

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