More proof that the City law is different from Title VII

This case demonstrates who the New York City Human Rights Law is quite different from federal employment law. If you want to bring a sexual harassment case under federal law, the harassment must be severe or pervasive. Under the City law, the plaintiff only has to show she was treated "less well" because she was a woman, and she loses the case only if the harassment was trivial. What if the plaintiff might lose her case under federal law but wants to proceed under the City law?

The case is Domingo v. Avis Budget Group, an Appellate Division ruling issued on August 30. Plaintiff lost her discrimination and retaliation claims in federal court, which dismissed those claims on a summary judgment motion. The federal court declined to exercise jurisdiction over the City law sexual harassment claim, which prompted plaintiff to refile that claim in State Supreme Court. The State Court dismissed the City law hostile work environment claim, but it did so under the federal standard. That ruling is revered by the Second Department.

Here are (at least some of) the facts as taken from the federal court ruling:

few days later, around July 10, 2017, another co-worker, Jamaal Sterling, touched plaintiff's buttocks. Plaintiff testified in her deposition that Sterling “grabbed” her buttocks, giving it “just a little squeeze.” Her affidavit in opposition to defendants’ summary judgment described the incident as a “grope.” Shocked and appalled, plaintiff ran to the restroom to escape the distressing situation. She neither confronted Sterling, nor did she feel comfortable reporting this incident to Feliz because he had previously failed to correct Roberts’ misconduct only a few days earlier, and she was afraid that she would be subject to retaliation.

Domingo v. Avis Budget Grp., Inc., No. 18-CV-5430 (BMC), 2020 WL 804898, at *1 (E.D.N.Y. Feb. 18, 2020)

Plaintiff testified in her deposition that, around July 6, 2017, a co-worker, Eric Roberts, asked her out on a date, stating that he could imagine what she “tasted like.” Feliz overheard Roberts’ inappropriate comment, but he did not reprimand him or otherwise take any corrective action. When plaintiff confronted Feliz about this, he threw his hands up in the air and told her to get back to work. As a supervisor, Feliz had a duty to report any harassment or discrimination that was brought to his attention.

A few days later, around July 10, 2017, another co-worker, Jamaal Sterling, touched plaintiff's buttocks. Plaintiff testified in her deposition that Sterling “grabbed” her buttocks, giving it “just a little squeeze.” Her affidavit in opposition to defendants’ summary judgment described the incident as a “grope.” Shocked and appalled, plaintiff ran to the restroom to escape the distressing situation. She neither confronted Sterling, nor did she feel comfortable reporting this incident to Feliz because he had previously failed to correct Roberts’ misconduct only a few days earlier, and she was afraid that she would be subject to retaliation

Domingo v. Avis Budget Grp., Inc., No. 18-CV-5430 (BMC), 2020 WL 804898, at *1 (E.D.N.Y. Feb. 18, 2020)

A few days later, around July 10, 2017, another co-worker, Jamaal Sterling, touched plaintiff's buttocks. Plaintiff testified in her deposition that Sterling “grabbed” her buttocks, giving it “just a little squeeze.” Her affidavit in opposition to defendants’ summary judgment described the incident as a “grope.” Shocked and appalled, plaintiff ran to the restroom to escape the distressing situation. She neither confronted Sterling, nor did she feel comfortable reporting this incident to Feliz because he had previously failed to correct Roberts’ misconduct only a few days earlier, and she was afraid that she would be subject to retaliation.

Domingo v. Avis Budget Grp., Inc., No. 18-CV-5430 (BMC), 2020 WL 804898, at *1 (E.D.N.Y. Feb. 18, 2020)

A few days later, around July 10, 2017, another co-worker, Jamaal Sterling, touched plaintiff's buttocks. Plaintiff testified in her deposition that Sterling “grabbed” her buttocks, giving it “just a little squeeze.” Her affidavit in opposition to defendants’ summary judgment described the incident as a “grope.” Shocked and appalled, plaintiff ran to the restroom to escape the distressing situation. She neither confronted Sterling, nor did she feel comfortable reporting this incident to Feliz because he had previously failed to correct Roberts’ misconduct only a few days earlier, and she was afraid that she would be subject to retaliation.

Domingo v. Avis Budget Grp., Inc., No. 18-CV-5430 (BMC), 2020 WL 804898, at *1 (E.D.N.Y. Feb. 18, 2020)

Remember that when the City Council enacted the New York City Human Rights Law, it wanted a more plaintiff-friendly standard for hostile work environment because it knew that "severe or pervasive," adopted by the Supreme Court in 1986, was knocking out a lot of cases involving ugly sexist and racist slurs and gestures. Here is the reasoning from the Appellate Division:

the Supreme Court erred in granting dismissal of the cause of action alleging hostile work environment pursuant to CPLR 3211(a)(5). The District Court analyzed the hostile work environment claims under the standards set by Title VII and NYSHRL, and determined that those claims were neither "pervasive" nor "extraordinarily severe." Under NYCHRL, a claimant must only prove that they were "treated less well than other employees" because of their gender. As the plaintiff's allegations of sexual harassment and improper touching could constitute "more than petty slights and trivial inconveniences" without rising to the level of being severe and pervasive, Supreme Court should not have granted dismissal of this cause of action pursuant to the doctrine of collateral estoppel.