First Department provides another tutorial on the City Human Rights Law

Having litigated civil rights cases in the state appellate courts under the New York City Human Rights Law, I can tell you the City law is quite different from Title VII and the State Human Rights Law. The City law takes a zero-tolerance approach to employment discrimination, requiring management to properly train its employees to avoid discrimination in the first place, including sexual harassment. This is what the City Council wanted in enacting the law, and this is how the state courts are now interpreting it.

The case is Suri v. Grey Global Group, decided by the Appellate Division First Department on August 3. After rejecting plaintiff's claim under State law, the Appellate Division turns to the City law claim, reinstating the lawsuit after State Supreme Court granted defendant's motion for summary judgment. This result shows the stark contrast between the two laws. Claims that fail under State law can survive under the City law.

What does the evidence show? After plaintiff began working her new job, her boss, Cirullo told her she had beautiful hair. The next day Cirullo said plaintiff had nice boots. A week later, he placed his hands on plaintiff's thigh and squeezed lightly for a few seconds. After plaintiff rebuffed these advances, Cirullo retaliated against her, as follows:

Suri claims that Cirullo's behavior towards her changed. According to Suri he dismissed her work; talked over her; put his hand in her face when she was talking; criticized, belittled and mocked her in front of other employees; cut her out of meetings; withheld resources; and delayed one of her projects. For the last six months of her employment, Cirullo stopped talking to her, even though he sat next to her. She also maintains that because Cirullo mistreated her, other employees followed along believing that it was permissible to disrespect her.

After plaintiff complained to management, the retaliation continued:

Cirullo briefly relented and invited her to a few meetings. However, Cirullo soon resumed cutting her out of meetings and emails. Suri maintains that after she objected, Cirullo gave her the task of setting up the very same meetings to which she was not invited. In May or June 2009, Suri states that she complained to the human resources manager that Cirullo pulled her on and off projects and left her with no resources on one project. According to Suri, the human resources manager responded "that that's how men are and we have to tiptoe around their egos and this is a male-dominated world and we already know we work twice as hard as they do with less pay." As a result of this complaint, Suri explains that the manager requested that Cirullo create a new job description for her. Cirullo did so, but three days after the complaint, he removed her from a project.

The majority notes the City Council in enacting the City law wanted to "meld the broadest vision of social justice with the strongest law enforcement deterrent," and the State Court of Appeals said all provisions of the City law should be construed "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible." This means that "to establish a gender discrimination claim under the City Human Rights Law, a plaintiff need only demonstrate 'by a preponderance of the evidence that she has been treated less well than other employees because of her gender.'" Also, "the federal and state law, limiting actionable sexual harassment to 'severe or pervasive' conduct, was not appropriate for the broader and more remedial City Human Rights Law."

Looking at the case holistically, the First Department says the jury must determine if Cirullo created a hostile work environment and whether he made a sexual overture. As sexual advances are not always explicit, we leave it to the jury to interpret this kind of workplace behavior. "It is a jury's function to determine what happened between Cirullo and Suri, and whether it amounted to gender discrimination. If it credits plaintiff's account of two 'compliments' followed within approximately one week by her supervisor's palm on her thigh, and her description of how her treatment at the workplace deteriorated in the wake of these incidents, then a jury could find that such behavior did not constitute 'petty slights or trivial inconveniences.'"

The First Department also provides guidance on when the burden-shifting framework set forth in Bennett v. Health Management Systems, 92 A.D.3d 29 (1st Dept 2011), applies to a case like this. Bennett applied the McDonnell-Douglas prima-facie case/pretext model to a disparate treatment claim, albeit rejecting the pretext-plus model that the Second Circuit has employed in Title VII cases, which requires the plaintiff to prove evidence the employer lied about the reason for her termination and additional evidence that speaks to discriminatory intent. Under Bennett, the employer's lie is usually enough to win the case.

The dissent in this case wants to apply the Bennett burden-shifting model to this hostile work environment case. But as the majority puts it: "the dissent mistakenly applies the Bennett burden-shifting test to Suri's claim that Cirullo tacitly sought sexual favors from her, and mistreated her after she rebuffed him." However, "Bennett did not involve a claim for differential treatment resulting in a hostile environment. Our . . . cases demonstrate that courts should not automatically apply the Bennett burden-shifting framework to every aspect of a plaintiff's City Human Rights Law claim." This means that while Bennett burden-shifting might be appropriate in a wrongful termination case, it would not apply in a case involving "alleged sexual advances and subsequent demeaning conduct."