Monday, April 29, 2013

Employer's "boy's club" atmosphere may violate the New York City Human Rights Law

The Second Circuit has now officially weighed in on the New York City Human Rights Law, which was amended in 2005 to provide greater protection to employees and make it easier for them to win even those discrimination claims that might otherwise fail under Title VII and the New York State Human Rights Law. The Second Circuit vacates summary judgment in a gender discrimination and retaliation claim against a company that ran its office like a men's locker room.

The case is Mihalik v. Credit Agricole Cheuvreux N.A., decided on April 26. After plaintiff was hired, her boss subjected her to boorish behavior, propositioned her sexually and commented on her physical appearance. Co-workers openly watched pornography on their computers and shared it with plaintiff. The Court of Appeals says the workplace was like a "boy's club." After plaintiff objected to this nonsense, her boss excluded her from meetings, berated her in front of co-workers and criticized her work. Plaintiff was fired, allegedly for poor job performance. Her boss was originally going to merely give her a performance warning, but plaintiff was fired "after she asked him, in an allusion to his sexual propositions, 'What's not working out [?] Me and you or me at the company?"

As plaintiff did not sue under the state or federal anti-discrimination laws, the Second Circuit (Chin, Lohier and Droney) only resolves this case under the City Human Rights Law. That allows Judge Chin to summarize the contours of the city law. And if you litigate cases like this, you have to read this decision. In sum, the City Council wanted the amended law to be "construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York Sate civil and human rights laws ... have been so construed." So, the City law must be analyzed independently of state and federal law, and courts must interpret the City law "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible."

Plaintiff's gender discrimination claim therefore goes to a jury. She does not have to prove that management subjected her to a severe or pervasive harassment. While the City law is not a general civility code, the plaintiff instead need only prove that, under the totality of the circumstances, "she has been treated less favorably than other employees because of her gender." The defendants can win by showing that the unfavorable treatment amounted to "petty slights and trivial inconveniences." Under these standards, plaintiff has a legitimate gender discrimination claim. The workplace "objectified" women and, like I said, plaintiff had to work in a "boy's club" among sex-crazed colleagues, one of whom told plaintiff that "male employees should be respected because they were 'male' and thus 'more powerful' than women." Not to mention the two unwanted sexual propositions.

Her retaliation claim also goes to trial. To win, plaintiff has to prove that management's response to her complaints about sexist behavior would deter an employee from complaining again. Plaintiff's boss was not going to fire her until she made reference to the spurned sexual advances. Even prior to her termination, after plaintiff refused to sleep with her boss, he told her in front of colleagues that she "added nothing of value," has "no fucking clue what she was doing" and was "pretty much useless." And five months after plaintiff rejected his sexual advances, she was given a poor performance review and terminated, the first time her supervisor met with her to review her performance. While the Second Circuit says that plaintiff had performance issues, that does not entitle defendant to summary judgment on this record.

The Court of Appeals goes out of its way to emphasize how the City Human Rights Law favors plaintiffs in employment discrimination disputes. Had plaintiff also raised Title VII claims, though, I would guess that she would have survived summary judgment on her federal claims as well. The workplace arguably had severe or pervasive sexual harassment, and the test governing city and federal retaliation claims is substantially identical, as least as to whether management's response would dissuade a reasonable employee from complaining again. Still, this decision puts management on notice that the revised City Human Rights Law is no joke, and that claims that fail under federal law can still go to the jury under the city law.

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