Human Rights Law – Page 3 – New York Appellate Digest

Appeals, Human Rights Law, Landlord-Tenant, Municipal Law

THE COMPLAINT STATED A CAUSE OF ACTION FOR A VIOLATION OF THE EXECUTIVE LAW WHICH PROHIBITS DISCRIMINATION BY LANDLORDS AGAINST POTENTIAL TENANTS BASED UPON SOURCE OF INCOME; ALTHOUGH THE ISSUE WAS NOT RAISED BELOW IT PRESENTED A QUESTION OF LAW REVIEWABLE ON APPEAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the complaint stated a cause of action for a violation of the Executive Law prohibiting discrimination in renting an apartment based upon source of income. Although the issue was raised for the first time on appeal, the issue presented a question of law which could not have been avoided had it been raised below:

Executive Law § 296 (5) (a) (2) provides in relevant part that it “shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right to sell, rent or lease a housing accommodation, constructed or to be constructed, or any agent or employee thereof . . . [t]o discriminate against any person because of . . . lawful source of income . . . in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or in the furnishing of facilities or services in connection therewith.” Plaintiff alleged in its amended complaint that it sent two testers to defendants’ properties seeking to rent the properties. The testers asked defendants if they accepted security agreements, which are issued by the Erie County Department of Social Services to landlords in the amount of one month’s rent in lieu of a cash deposit. Defendants responded that they accepted those agreements, but that they also required tenants to put down a cash deposit of one-half of a month’s rent for the security deposit.

… The allegations in the amended complaint support the inference that, for a person whose lawful source of income is public assistance … , defendants imposed a different term or condition for the rental than for a person whose lawful source of income was not public assistance. In particular, for a person on public assistance, defendants required one-half’s month rent, in cash, as a security deposit in addition to the security agreements. Housing Opportunities Made Equal v DASA Props. LLC, 2023 NY Slip Op 03607, Fourth Dept 6-30-23

Practice Point: The Executive Law prohibits landlords from discriminating against potential tenants by requiring a cash deposit in addition to security agreements issued by the county.

Practice Point: An issue not raised below will be considered on appeal if it presents a question of law which could not have been avoided if raised below.

June 30, 2023

Civil Procedure, Employment Law, Human Rights Law, Municipal Law

THE HOSTILE WORK ENVIRONMENT AND SEX DISCRIMINATION CLAIMS WERE NOT UNTIMELY BECAUSE A CONTINUING COURSE OF CONDUCT LEADING UP TO THE FILING OF THE COMPLAINT WAS ALLEGED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s hostile work environment and sex discrimination claims should not have been dismissed as untimely because a continuing pattern was sufficiently alleged:

The allegations supporting plaintiff’s hostile work environment and sex discrimination claims are timely, as she has sufficiently alleged facts comprising “a single continuing pattern of unlawful conduct extending into the [limitations] period immediately preceding the filing of the complaint” … . The complaint alleges that, following Corn’s sexual assault on plaintiff in February 2015, he continued to stare at her, lurked by her desk, made inappropriate, flirtatious comments toward her, disclosed intimate details about his marriage, and frequently pressured her to go out drinking, within the limitations period. It cannot be said that, as a matter of law, these acts were not part of a single continuing pattern of unlawful conduct supporting her hostile work environment and discrimination claims … .

Moreover, under the New York City Human Rights Law (Administrative Code of City of NY § 8-107) and amended New York State Human Rights Law (Executive Law § 296[h]), the allegations that Corn sexually assaulted plaintiff in 2015 and engaged in a pattern of gender-based misconduct in the workplace, demonstrate that she was subjected to inferior terms, conditions, or privileges of employment on the basis of her gender … . Crawford v American Broadcasting Co., Inc., 2023 NY Slip Op 02611, First Dept 5-16-23

Practice Point: Here the hostile work environment and sex discrimination claims should not have been dismissed as untimely because a continuing course of conduct up until the filing of the complaint was alleged.

May 16, 2023

Employment Law, Human Rights Law, Municipal Law

UNDER THE NEW YORK CITY HUMAN RIGHTS LAW, PLAINTIFF NEED NOT DEMONSTRATE AN ADVERSE EMPLOYMENT ACTION TO RECOVER FOR GENDER DISCRIMINATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s gender discrimination action under the NYC Human Rights Law (City HRL) should not have been dismissed:

Since “[t]he City HRL does not differentiate between sexual harassment and other forms of gender discrimination, but requires that sexual harassment be viewed as one species of sex- or gender-based discrimination” … , it was error to grant summary judgment dismissing plaintiff’s gender discrimination claim, while denying the motion with respect to the hostile work environment and sexual harassment claim. Moreover, plaintiff need not show an adverse employment action in order to establish a prima facie case of gender discrimination under the City HRL … . On this motion for summary judgment dismissing a claim under the City HRL, defendant bore the burden of showing that, based on the record evidence and drawing all reasonable inferences in plaintiff’s favor, no jury could find defendant liable for gender-based discrimination … . Here, plaintiff submits sufficient evidence to support her assertions that, after she rejected her supervisor’s sexual advances, she was unjustifiably criticized for her work product and attendance by her supervisors and was stripped of her assignments, which permits a finding that she was treated “less well” based on her gender … . Bond v New York City Health & Hosps. Corp., 2023 NY Slip Op 01939, First Dept 4-13-23

Practice Point: Under the New York City Human Rights Law a plaintiff need only show she was treated “less well” based on her gender. No adverse employment action is required.

April 13, 2023

Civil Procedure, Employment Law, Human Rights Law

PLAINTIFF, AGE 61, WAS HIRED FOR AS A CORRECTIONS OFFICER BUT RESIGNED AFTER TWO DAYS AT THE TRAINING ACADEMY; PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT; PLAINTIFF WAS NICKNAMED “GRANDMA” AND SUBJECTED TO RIDICULE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff stated a cause of action for age discrimination/hostile work environment. Plaintiff, aged 61, was hired as a corrections officer. She only lasted a couple of days at the training academy. She allegedly was immediately nicknamed “Grandma” and was subjected to ridicule:

Even though plaintiff admitted that she was prepared for the intensive, para-military nature of an academy, she testified that she was not prepared for the humiliation based on the discriminatory conduct that was “singling [her] out by [her] age.” Despite that many of defendant’s witnesses — including the drill sergeant — did not have a recollection of the alleged discriminatory conduct, the Equal Employment Opportunity Commission still had determined that there was reasonable cause to believe that defendant discriminated against plaintiff; such finding, although not dispositive, is some evidence of discrimination … . Given that the conduct spread beyond staff and plaintiff’s trainee class, but also to members of a previous class, further demonstrates the pervasive nature of the alleged discriminatory conduct — particularly in such a short period before plaintiff’s resignation. Accordingly, based on the foregoing, particularly plaintiff’s account of the drill sergeant’s conduct and the candid admissions by the administrative sergeant as to the objective nature of the comments being discriminatory … , we are satisfied that this proof, when viewed in a light most favorable to plaintiff, is sufficient to survive summary judgment and warrant a trial on plaintiff’s hostile work environment claim … . White-Barnes v New York State Dept. of Corr. & Community Supervision, 2023 NY Slip Op 01561, Third Dept 3-23-23

Practice Point: Plaintiff was hired as a corrections officer at age 61. At the training academy she was called “Grandma” and ridiculed. She resigned after two days. The Third Department held the complaint stated an age-discrimination/hostile-work-environment cause of action and should not have been dismissed.

March 23, 2023

Civil Procedure, Employment Law, Human Rights Law, Labor Law

PLAINTIFF STATED CAUSES OF ACTION FOR EMPLOYMENT DISCRIMINATION AND VIOLATIONS OF THE LABOR LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had stated causes of action for employment discrimination, failure to pay overtime, and failure to pay weekly:

… [P]laintiff has sufficiently stated a cause of action for employment discrimination under both the New York State and New York City Human Rights Laws … . Plaintiff alleges that she is a member of a protected class; that she was qualified for the position by, among other things, having a decade of experience in leadership roles; and that she was subject to an adverse employment action under circumstances giving rise to an inference of discrimination … . Specifically, plaintiff, a Black woman, alleges that her supervisor … , irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, “Why did you call HR? Blacks . . . I should have never hired her.”

… [W]e find that she has sufficiently stated a claim for unpaid overtime under the Labor Law by alleging that she worked more than 40 hours per week and that defendants never paid her for the overtime (CPLR 3013 …).

Plaintiff’s claim based on defendants’ failure to pay her weekly also is sufficiently pleaded, as she alleges that she was a nonexempt employee under Labor Law § 190, and that defendants were required to pay her each week as a manual worker under New York Labor Law § 191. Kirby v Carlo’s Bakery 42nd & 8th LLC, 2023 NY Slip Op 00059, First Dept 1-10-23

Practice Point: Here plaintiff stated causes of action for employment discrimination (a racist remark just prior to her termination), as well as failure to pay overtime and failure to pay weekly in violation of the Labor Law.

January 10, 2023

Civil Rights Law, Employment Law, Human Rights Law, Immunity, Municipal Law

IN THIS HOSTILE-WORK-ENVIRONMENT ACTION UNDER 42 USC 1983 AND THE NYS HUMAN RIGHTS LAW, SOME OF THE DEFENDANTS, ALL CITY EMPLOYEES, WERE DEEMED PROTECTED FROM SUIT BY QUALIFIED IMMUNITY AS A MATTER OF LAW; WITH RESPECT TO THE EMPLOYEE WHO ALLEGEDLY MADE SEXUALLY INAPPROPRIATE COMMENTS TO PLAINTIFF, THERE WERE QUESTIONS OF FACT WHETHER QUALIFIED IMMUNITY WAS APPLICABLE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined qualified immunity protected plaintiff’s supervisors in this hostile-work-environment action under 42 USC 1983 and the NYS Human Rights Law against the City of Albany and individual city employees. Plaintiff alleged a co-worker named Tierney made sexually inappropriate comments to her over a period of two years. The allegations against Tierney properly survived summary judgment, but the allegations against the defendants who played no role in the harassment, alleging supervisory inaction, should have been dismissed. Plaintiff had worked as a civilian dispatcher in the police department:

In the 42 USC § 1983 context, liability of an individual defendant is based on his or her “personal involvement in the alleged constitutional deprivation” … . Individual defendant liability only attaches when his or her own conduct is sufficiently severe and pervasive to create the hostile work environment; otherwise, that defendant is protected by qualified immunity … . * * *

Under state law, public officials are protected by qualified immunity for discretionary acts that are unlawful under the Human Rights Law unless “they are undertaken in bad faith or without reasonable basis” … . Hostile work environment claims under the Human Rights Law are evaluated under the same severe-or-pervasive standard as a claim brought pursuant to 42 USC § 1983 … .* * *

Although individual liability under 42 USC § 1983 may flow from a supervisor’s inaction in the face of known harassment … , the alleged individual inaction … did not suffice to create the hostile work environment … .

We reach the same conclusion … under the Human Rights Law, pursuant to which supervisors may be held individually liable to the extent that they aided and abetted conduct creating a hostile work environment (see Executive Law § 296 [6]). … [D]efendants[] … did not actively participate in the conduct creating the hostile work environment as required under the aiding-and-abetting provision … .

Even if plaintiff’s Human Rights Law claim against them could proceed under a supervisory inaction theory, we would conclude that they are shielded by qualified immunity. … . Mahoney v City of Albany, 2022 NY Slip Op 07288, Third Dept 12-22-22

Practice Point: Here plaintiff and defendants were city employees. Plaintiff alleged one employee made sexually inappropriate comments to her over a two year period. Supervisory inaction was the basis for the action against other defendants. The Third Department held the “supervisory-inaction” defendants were protected from suit by qualified immunity as a matter of law under both 42 USC 1983 and the NYS Human Rights Law. There were questions of fact about whether the employee who made the comments was protected by qualified immunity.

December 22, 2022

Constitutional Law, Education-School Law, Human Rights Law, Municipal Law, Religion

YESHIVA UNIVERSITY NO LONGER HAS THE REQUISITE CONNECTION TO RELIGION AND THEREFORE IS NOT EXEMPT FROM THE DISCRIMINATION PROHIBITIONS IN THE NYC HUMAN RIGHTS LAW; THE PRIDE ALLIANCE WAS ENTITLED TO RECOGNITION AS AN OFFICIAL STUDENT ORGANIZATION (FIRST DEPT).

The First Department determined a student group (Pride Alliance) at Yeshiva University was entitled to summary judgment pursuant to the NYC Human Rights Law (City HRL)on its claims asserting gender, sexual orientation, and association discrimination. In addition Pride Alliance was entitled to a permanent injunction requiring Yeshiva to recognize the group as an official student organization. Essentially, Yeshiva argued the university was exempt from the requirements of the City HRL as a religious corporation or institution, but the university no longer had the requisite connection to religion: Yeshiva’s constitutional arguments (free exercise of religion, freedom of expression and association) were rejected:

Yeshiva was originally chartered in 1897 under the Membership Corporations Law as the Rabbi Isaac Elchanan Theological Seminary Association (RIETS), with the stated purpose to “promote the study of Talmud” and prepare Orthodox Jewish rabbis for ministry. Over several decades, the charter was amended to allow numerous secular degrees to be awarded and to change the name of the institution, while RIETS remained part of Yeshiva. In 1967, Yeshiva amended its charter to become incorporated under the Education Law. Two years later it amended the charter to drop Hebrew Literature and Religious Education degrees, since RIETS was being spun off as its own corporation offering those degrees, and to “clarify the corporate status of the University as a non-denominational institution of higher learning.” While Yeshiva is now comprised of three undergraduate colleges and seven graduate schools, RIETS remains a separate corporate entity housed on one of Yeshiva’s campuses. YU Pride Alliance v Yeshiva Univ., 2022 NY Slip Op 07175, First Dept 12-13-22

Practice Point: Yeshiva University was not entitled to exemption from the discrimination prohibitions in the NYC Human Rights Law because the university no longer has the requisite connection to religion. Therefore the “Pride Alliance” was entitled to recognition as an official student group.

December 15, 2022

Civil Procedure, Employment Law, Human Rights Law

THE THREE-YEAR STATUTE OF LIMITATIONS FOR AGE DISCRIMINATION CLAIMS UNDER THE NYS AND NYC HUMAN RIGHTS LAW IS TOLLED BY FILING A CHARGE FOR AGE DISCRIMINATION WITH THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) (FIRST DEPT).

The First Department, reversing Supreme Court, determined the age discrimination claims under the NYS and NYC Human Rights Law were timely brought because the three-year statute of limitations was tolled when plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC):

Plaintiff’s action, asserting claims of age discrimination under the New York State Human Rights Law (Executive Law § 296[1][a]) and the New York City Human Rights Law (Administrative Code § 8-107), was timely commenced, as the three-year statute of limitations was tolled by her filing of a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) … . The filing of an EEOC charge constitutes a simultaneous and automatic filing with the New York State Division of Human Rights (SDHR) due to a work-sharing agreement between the two agencies … .

Moreover, Administrative Code § 8-502(d) provides, “[u]pon the filing of a complaint with the city commission on human rights or the state division of human rights and during the pendency of such complaint and any court proceeding for review of the dismissal of such complaint, such three-year limitations shall be tolled.” The interplay between the EEOC/SDHR work-sharing agreement and the tolling provision in § 8-502(d) “indicates that a charge filed with the EEOC would also toll the statute of limitations period for [City HRL] claims” … . Gabin v Greenwich House, Inc., 2022 NY Slip Op 06428, First Dept 11-15-22

Practice Point: Filing an age discrimination charge with the Equal Employment Opportunity Commission (EEOC) tolls the three-year statute of limitation for filing age discrimination claims pursuant the NYS and NYC Human Rights Law.

November 15, 2022

Civil Procedure, Employment Law, Human Rights Law, Municipal Law

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.

October 6, 2022

Employment Law, Human Rights Law

PLAINTIFF’S CAUSES OF ACTION FOR CONSTRUCTIVE DISCHARGE AND HOSTILE WORK ENVIRONMENT SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined plaintiff’s causes of action for constructive discharge and hostile work environment should have been dismissed. The court laid out the criteria for those causes of action:

“An employee is constructively discharged when her or his employer, rather than discharging the plaintiff directly, deliberately created working conditions so intolerable that a reasonable person in the plaintiff’s position would have felt compelled to resign” … . Here, the defendants established, prima facie, that the plaintiff’s complaints were insufficient to show an intolerable work environment that would lead a reasonable person in that position to feel compelled to resign … . …

A hostile environment claim “involves repeated conduct,” not “[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire” … . Here, the two discrete acts alleged by the plaintiff were insufficient to create a hostile work environment … . Blackman v Metropolitan Tr. Auth., 2022 NY Slip Op 03490, Second Dept 6-1-22

Practice Point: A “constructive discharge” employment-discrimination cause of action requires the deliberate creation of intolerable working conditions designed to force the plaintiff to quit (not demonstrated here). A “hostile work environment” employment-discrimination cause of action requires “repeated conduct” which is not demonstrated discrete acts such as termination, failure to promote, denial of transfer or refusal to hire.

June 1, 2022