The case is Kolenovic v. ABM Industries Incorporated, a summary order decided on January 21. The federal and state law sexual harassment claims in this case were dismissed on summary judgment, and the Court of Appeals affirms because there was no evidence that the harassment was severe or pervasive, the well-known test under federal and state law. But on the same factual record, the City law claim survives. Why?
The New York City Human Rights Law was amended in 2005 to "abolish 'parallelism' between" the City Human Rights law and the state and federal civil rights laws. What this means is that these three laws no longer operate under the same standard. The City law is more favorable to plaintiffs, and the law specifically commands the courts to liberally interpret its terms. So, in Loeffler v. Staten Island Community Hospital, 582 F.3d 268 (2d Cir. 2009), the Second Circuit for the first time recognized this distinction, ruling in a non-employment disability rights claim that the federal/state laws are not coterminus with the City law.
In this case, the Court of Appeals (Jacobs, Sack and Hall) applies Loeffler to employment discrimination cases, reinstating the City sexual harassment claim which does not require "severe or pervasive" harassment but proof that "the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of her gender ... and questions of severity and frequency reserved for consideration of damages.” Williams v. New York City Housing Authority, 61 A.D.3d 62, 78 (1st Dept. 2009).The Court of Appeals summarizes its reasoning:
Prior to the issuance of our decision in Loeffler, the district court evaluated Kolenovic’s Title VII, NYSHRL, and NYCHRL hostile work environment claims under the single “severe or pervasive” standard. We affirm the district court’s grant of summary judgment with respect to the federal and state law hostile work environment claims, but under the Restoration Act and Loeffler, the NYCHRL claim should have been evaluated separately from its federal and state counterpart claims. Accordingly, we vacate the district court’s grant of summary judgment with respect to the NYCHRL hostile work environment claim.