Judge can bring discrimination lawsuit under City Human Rights Law

Judges are employees, too, right? At least this judge is. She is an Administrative Law Judge who works for a New York City agency, the Department of Consumer Affairs. She sues the agency for sex and age discrimination, as well as retaliation.

The case is Kassapian v. City of New York, an Appellate Division ruling handed down on November 15. The plaintiff mostly sues under the New York City Human Rights Law, which provides greater protections than the New York State Human Rights Law and Title VII. The appellate court summarizes her claims this way:

The complaint alleged that the plaintiff and other ALJs spoke out internally within the agency and externally to public officials and the press about an alleged [Department of Consumer Affairs] practice of improperly pressuring ALJs to issue recommended decisions in favor of the agency and to impose maximum fines. The plaintiff was allegedly demoted and subjected to other retaliation due to this speech and to her complaints concerning alleged sexual harassment.

It goes without saying that the alleged pressure for ALJs to issue certain rulings would be a major scandal. But the Appellate Division focuses mostly on whether she has an actionable claim.

On the sexual harassment claim, plaintiff may proceed to discovery upon claiming a coworker "repeatedly demonstrated a sex toy to the plaintiff." She submitted an affirmation from a coworker that corroborates this allegation. This may not constitute a hostile work environment under Title VII (as the harassment must be severe or pervasive), but the rules are different under the City law, which says that any contention that "the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense which should be raised in the defendants' answer and does not lend itself to a pre-answer motion to dismiss." The Second Department cites a well-known First Department case for this proposition, Williams v. New York City Hous. Auth., 61 A.D.3d 62 (1st Dept. 2009), so I wonder if this is the first time the Second Department has ruled this way. If it was not the standard in the Second Department in the past, it is now.

Plaintiff also has an age discrimination claim based on a demotion. We don't know much about this claim except that the individual defendants are the same age as plaintiff. That does not mean she does not have a claim under the City law. Another example of how the City law provides greater protections for plaintiffs than federal law.

Finally, we got ourselves a First Amendment retaliation claim arising from the corruption speech. Not only did plaintiff speak on a matter of public concern, but "the allegations that the plaintiff was demoted following the internal complaints, and that she suffered a campaign of harassment following the external complaints, sufficiently pleaded that the subject speech was a substantial or motivating factor for an adverse employment action."