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PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined plaintiff’s gender discrimination suit should not have been dismissed:

As ostensibly nondiscriminatory reasons for terminating plaintiff, defendants pointed to plaintiff’s alleged management deficiencies; her alleged insubordination, by, among other things, refusing a directive to extend her vacation; and her alleged concealment of her romantic relationship with a subordinate.

In response, plaintiff raised issues of fact as to pretext … . Among other things, plaintiff points out that her termination on June 30, 2011, represented a drastic shift from the favorable performance review which she received only three weeks earlier. Indeed, plaintiff was on vacation for nearly a week of that three-week time period. Nothing in the record explains why any defects in plaintiff’s management style, identified in her otherwise favorable performance review, suddenly warranted her termination. Defendants’ assertion that plaintiff was insubordinate and hostile is belied by the record, which shows nothing more than innocuous e-mail exchanges between plaintiff and her superior … during the several days prior to the termination. Finally, defendants’ assertion that plaintiff’s concealing of her relationship with her subordinate was a ground for termination is belied by, among other things, emails exchanged only a week earlier, demonstrating that the subordinate would be reporting to another manager, in order to avoid any appearance of impropriety.

Plaintiff has also pointed to evidence of gender bias, in the form of [her superior’s] holding women, including plaintiff, to a different standard than men in the workplace. Nor were these mere “stray remarks.” To the contrary, [her superior] told plaintiff that she lacked “emotional intelligence and empathy toward others,” which were perceived as shortcomings in her ability to manage her subordinates, and which were “amplified because [she was] in a high profile seat and female.” Barone v Emmis Communications Corp., 2017 NY Slip Op 04787, 1st Dept 6-13-17

EMPLOYMENT LAW (HUMAN RIGHTS LAW, GENDER DISCRIMINATION, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)/HUMAN RIGHTS LAW (EMPLOYMENT LAW, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)/GENDER DISCRIMINATION (EMPLOYMENT LAW, HUMAN RIGHTS LAW, GENDER DISCRIMINATION, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)

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HUMAN RIGHTS LAW PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over an extensive dissenting opinion, answered three certified questions from the Second Circuit. Plaintiffs were movers employed by Astro which contracted with Allied (located out of state) . Most of Astro’s work came from Allied. Plaintiffs had been convicted of sex offenses involving young children. After a criminal record screening ordered by Allied, plaintiffs were fired. Plaintiffs then sued Allied under Human Rights Law 296 alleging discrimination based upon their criminal convictions.  The Court of Appeals held: (1) Human Rights Law 296 applies only to discrimination by employers; (2) employers are those who directly control the work of employees; and (3) the provision of Human Rights Law 296 which prohibits aiding and abetting discrimination applies to out-of-state non-employers:

… [W]e need look no further than our own lower courts to determine who is an employer under the Human Rights Law. … In State Div. of Human Rights v GTE Corp., the Appellate Division identified four relevant factors: “‘(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant’s conduct'” … . … [The]”‘… really essential element of the relationship is the right of control, that is, the right of one person, the master, to order and control another, the servant, in the performance of work by the latter'”  … . * * *

Section 296 (6) [prohibiting aiding and abetting discrimination] applies to any “person.” … [N]othing in the statutory language or legislative history limits the reach of this provision to employers. Indeed, the purpose of subdivision (6) was “to bring within the orbit of the bill all persons, no matter what their status, who aid or abet any of the forbidden practices of discrimination or who attempt to do so,” as well as “to furnish protection to all persons, whether employers, labor organizations or employment agencies, who find themselves subjected from any source to compulsion or coercion to adopt any forbidden employment practices” … . Griffin v Sirva, Inc., 2017 NY Slip Op 03557, CtApp 5-4-17

EMPLOYMENT LAW (DISCRIMINATION, HUMAN RIGHTS LAW, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)/CRIMINAL LAW (EMPLOYMENT LAW, HUMAN RIGHTS LAW, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)

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DISCRIMINATION AND RETALIATION CAUSES ACTION, AS WELL AS A FAMILY AND MEDICAL LEAVE ACT CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED.

The Second Department, modifying Supreme Court determined the discrimination and retaliation causes of action under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) should not have been dismissed. In addition, the court determined the Family and Medical Leave Act (FMLA) cause of action should not have been dismissed on the ground the defendant companies had less than 50 employees because there was question of fact whether single or joint employer doctrine should apply:

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Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the first and second causes of action insofar as they alleged discrimination and retaliation in violation of the NYSHRL and the NYCHRL, and the third cause of action pursuant to the NYSHRL and the NYCHRL, by proffering, among other things, a legitimate, nondiscriminatory reason for the plaintiff’s termination. The defendants cited, among other things, the plaintiff’s disciplinary record, which included numerous infractions. The plaintiff, however, raised triable issues of fact, inter alia, on the issue of pretext, by referring to his good disciplinary record for the first three years of his employment, followed by frequent citations for disciplinary issues which commenced only after he allegedly began complaining of discriminatory treatment on the basis of association, ancestry, and religion. Under these circumstances, the Supreme Court erred in determining that the plaintiff failed to raise triable issues of fact regarding so much of his first through third causes of action as alleged discrimination and retaliation in violation of the NYSHRL and NYCHRL.  Macchio v Michaels Elec. Supply Corp., 2017 NY Slip Op 02636, 2nd Dept 4-5-17

EMPLOYMENT LAW (DISCRIMINATION AND RETALIATION CAUSES ACTION, AS WELL AS A FAMILY AND MEDICAL LEAVE ACT CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED)/HUMAN RIGHTS LAW (EMPLOYMENT LAW, DISCRIMINATION AND RETALIATION CAUSES ACTION, AS WELL AS A FAMILY AND MEDICAL LEAVE ACT CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED)/DISCRIMINATION (EMPLOYMENT LAW, DISCRIMINATION AND RETALIATION CAUSES ACTION, AS WELL AS A FAMILY AND MEDICAL LEAVE ACT CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED)/FAMILY AND MEDICAL LEAVE ACT (EMPLOYMENT LAW, DISCRIMINATION AND RETALIATION CAUSES ACTION, AS WELL AS A FAMILY AND MEDICAL LEAVE ACT CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED)

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DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION.

The Fourth Department, reversing Supreme Court, determined the New York State Department of Human Rights’ (SDHR’s) ruling, without a hearing, there was no probable cause to believe petitioner was discriminated or retaliated against because of her disability was not arbitrary or capricious and had a rational basis:

“Where, as here, SDHR renders a determination of no probable cause without holding a hearing, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious or lacked a rational basis’ ” … . We agree with respondent that the court erred in disturbing SDHR’s determination based upon, inter alia, its failure to conduct a hearing. “Courts give deference to SDHR due to its experience and expertise in evaluating allegations of discrimination” … , and “such deference extends to [SDHR’s] decision whether to conduct a hearing” … . SDHR has the discretion to determine the method to be used in investigating a claim, and “a hearing is not required in all cases” … . Inasmuch as “the parties made extensive submissions to [SDHR], petitioner was given an opportunity to present [her] case, and the record shows that the submissions were in fact considered, the determination cannot be arbitrary and capricious merely because no hearing was held’ … . * * *

Here, we conclude that “the conflicting evidence before SDHR did not create a material issue of fact that warranted a formal hearing” … . Rather, we agree with respondent that a rational basis supports SDHR’s determination that, based upon all of the facts and circumstances, there is no factual basis in the evidence sufficient to warrant a cautious person to believe that respondent unlawfully discriminated against petitioner based on her disability ,,, . In addition, SDHR rationally determined that the evidence did not support petitioner’s allegation that respondent subjected her to a hostile work environment … . Finally, we conclude that SDHR’s determination that there was no probable cause to believe that respondent retaliated against petitioner is not arbitrary or capricious, and it has a rational basis in the record … . Matter of McDonald v New York State Div. of Human Rights, 2017 NY Slip Op 01060, 4th Dept 2-10-17

 

EMPLOYMENT LAW (DISABILITY DISCRIMINATION, DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION)/HUMAN RIGHTS LAW (NYS) (EMPLOYMENT DISCRIMINATION, DISABILITY DISCRIMINATION, DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION)/DISABILITIES (EMPLOYMENT DISCRIMINATION, HUMAN RIGHTS LAW, DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION)

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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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