First Department reinstates sexual orientation discrimination case

Everybody knows the New York City Human Rights Law provides broader protections for employees than federal law. That is why some plaintiffs choose to file their lawsuits in state and not federal court. The drawback is that cases move more slowly in state court. Like this one, though the plaintiff wins his appeal in claiming he was discriminated against because of his sexual orientation. Plaintiff also sues under the state law prohibiting discrimination, though it does not distinguish between the state and city laws in its analysis.

The case is Doe v. New York City Police Dept., issued on January 5. This case was filed in 2009. Back then, courts did not interpret Title VII to prohibit discrimination on the basis of sexual orientation. That changed in 2020, when the Supreme Court in Bostock v. Clayton County said that that form of discrimination is form of sex discrimination. 

Doe is a gay police detective who alleges that other officers ridiculed and harassed him because of his sexual orientation, and that he suffered retaliation for complaining about it. The harassment led to his resignation. The First Department ruling provides little detail about how plaintiff was treated, but the trial court decision says coworkers verbally abused him and made derogatory comments about gay men. As the First Department says, 

beginning within a short time after he joined defendant New York City Police Department (NYPD), it became widely known that he was gay, because, among other factors, homophobic colleagues vindictively published that fact by calling officers wherever plaintiff was stationed and telling them to harass plaintiff because he was gay. When plaintiff began his assignment at NYPD’s Internal Affairs Bureau’s (IAB) Command Center beginning in the summer of 2007, plaintiff was immediately exposed to two sergeants who quickly surmised, based on his responses to their constant homophobic slurs directed at civilians and gay officers, that plaintiff was gay. Other officers joined in, condoned and encouraged by the sergeants, and plaintiff thereafter endured over a year of homophobic derision, harassment, and verbal abuse.

This evidence establishes a claim for hostile work environment on account of Doe's sexual orientation, the First Department says. Similar comments that were directed toward plaintiff when he worked in a different department, the IAB's Vehicle Identification Unit, are also relevant to this claim.

We also have disparate treatment because of sexual orientation. Plaintiff was sent alone to work in holding cells with prisoners still inside; since plaintiff was carrying wooden and metal cleaning implements, he was at risk of assault from inmates. Other officers were not required to do this, and this was normally an assignment for the maintenance crew. This gives plaintiff a discrimination claim. Similarly, plaintiff was singled out in being sent to work the midnight shift by himself. The First Department says "[t]hese midnight solo patrols were dangerous and actionable as adverse employment actions effected under circumstances supporting an inference of discrimination." It also supports his constructive discharge claim. We don't have much analysis on this claim, but I point out that constructive discharge claims are quite difficult to win under federal law, as the plaintiff must show the work environment was so intolerable that the plaintiff was forced to resign. The First Department sees this as an easy call: sending someone to work in a dangerous work environment supports a constructive discharge claim.

Finally, plaintiff has a legitimate retaliation claim. Again, no details in the First Department ruling, but the City argued there is no retaliation because any adverse treatment that followed his complaints about the work environment predated those complaints. While cases hold there is no retaliation under those circumstances, the First Department points out that the complaint "alleges at least some 'new' or escalated conduct after the protected activities took place." That places the employer's motivation in issue, which makes it unripe for summary judgment.