Religious-based objection to selling bridal clothing for same-sex wedding violates state law

The First Department has sustained a State Division of Human Rights finding that a wedding business violated state law in refusing to sell a bridal jumpsuit for a same-sex wedding. The ruling rejects the business's objection that servicing the wedding would have violated their religious principles and the First Amendment.

The case is SDHR v. D. Auxilly NYC LLC, issued on October 22. Once the business proprietor realized the complainant wanted a same-sex marriage, Galbraith, the business owner, said it would not sell her the bridal jumpsuit, that making such an outfit would violate her sincerely held religious belief. The SDHR also found the business told complainant to reconsider the wedding entirely. The SDHR held a hearing in this case, and ruled against Auxilly, awarding the complainant $5,000 in damages for pain and suffering and a civil penalty in the amount of $20,000.

State law prohibits sexual orientation discrimination in public accommodations. While the Supreme Court has held in several high profile cases that businesses can deny servicing same-sex weddings under the First Amendment, that only applies when the services involve expressive conduct, like decorating a wedding cake or a website to celebrate the wedding. You may find these holds to be a stretch, but the Supreme Court has taken a broad definition of protected speech in these cases. But the First Department holds that selling a wedding garment is not expressive activity under the First Amendment, even if it might be adjusted for sizing. The business's order said at oral argument that the jumpsuit was a matter of expression, but the panel, to put it nicely, did not see it that way.  As the SDHR wrote in its appellate brief,

Galbraith, according to the parties’ stipulation of facts, is a designer and seller of “bridal and special occasion attire under the D. Auxilly brand.” However, her work, although tailored to fit the client, contains no speech element. It does not relate a “unique story” about the wearer using her original words and artwork. Although the clothing may reflect Galbraith’s considerable skill and talents, they are goods offered for sale to the general public. Galbraith’s sincerely held religious beliefs preclude same-sex marriage, but the commerce she partakes of is subject to the Human Rights Law’s requirements 

We also have ourselves a jurisdictional issue. The business was in New York, but the complaint lived in Missouri. New York law applies because the impact of the discriminatory violation transpired in New York.  

Plaintiff wins retaliation appeal against Trump's 2016 campaign

The Appellate Division has reinstated a retaliation case filed against Donald Trump's 2016 campaign, which alleges that, after its former director of Hispanic engagement sued the campaign for sex discrimination, the campaign filed an arbitration demand against her, seeking $1.5 million in damages. 

The case is Denson v. Donald J. Trump for President, Inc., issued on October 22. While plaintiff signed an NDA upon working for the campaign, a federal court later struck down the NDA as invalid and unenforceable. In this round, plaintiff argues the arbitration demand was filed in retaliation for her discrimination lawsuit. In an affidavit, the campaign's Chief Operating Officer, Glassner, asserted a good faith belief that the arbitration demand was legitimate. That was enough for State Supreme Court to dismiss this retaliation case.

The First Department reverses, and the case returns to Supreme Court for trial. The reason is that Glassner's subsequent deposition did not conclusively prove the campaign filed the arbitration claim in good faith. The Court reasons that Glassner's testimony was all over the place but not specific enough to prove as a matter of law that the campaign had a legitimate basis to proceed against plaintiff after she filed her lawsuit:

plaintiff identified sufficient evidence to raise a triable issue of fact as to whether the proffered reason was pretextual. Among other things, Mr. Glassner averred that defendant commenced the arbitration against plaintiff because it believed that plaintiff’s complaint contained “certain” disparaging and “sensationalist allegations” which “far exceeded what she was required to allege in order to state viable” discrimination causes of action against it. During his deposition two years later, however, Mr. Glassner testified that it was his personal decision to file the arbitration because he believed that every substantive paragraph of plaintiff’s complaint violated the NDA. Mr. Glassner could not describe how he distinguished between legitimate and illegitimate allegations for purposes of enforcing the NDA and could not specify which allegations were actually unnecessary for plaintiff to pursue this litigation.

Plaintiff also wins the appeal because the defendant cannot show how it suffered any real damages from her lawsuit, suggesting the $1.5 million demand was an arbitrary tactic to silence the plaintiff.

What we learn from this case is that not all affidavits in support of a summary judgment motion are enough to dismiss the case. Plaintiffs should determine whether the affidavit is sufficiently vague to permit discovery that would explore the factual basis for the otherwise untested allegations in the affidavit.

 

 

Anti-Biden Twitter critic loses federal civil rights suit alleging conspiracy to close his account

The plaintiff here was an active Twitter-poster who criticized President Biden's COVID-19 policies, challenging the shutdowns and school closures. Twitter eventually suspended him under its five-strikes-yer-out rule after determining he was tweeting misinformation about the virus. This lawsuit against the former FDA commissioner and Pfizer executives alleges that the suspension violated a federal civil rights conspiracy law. Plaintiff loses.

The case is Berenson v. Gottlieb, a summary order issued on October 20. Plaintiff says that Twitter shut him down after gaining over 200,000 followers in conspiracy with the Biden administration. Federal law does prohibit conspiracies to violate civil rights. That statute is 42 U.S.C. section 1985(3). But 1985(3) has significant limitations. It only applies when the conspiracy would violate your rights in a protected class under the Equal Protection Clause, such as a racial or class-based discriminatory motivation. Also, religious and gender discrimination. The Supreme Court has also Section 1985 might not protect political groups unless that discrimination was racially motivated. The Court of Appeals seems to protect plaintiffs who suffer conspiracies due to their political party affiliation but not because they are political opponents of the defendants.

Plaintiff loses because he asserts in the complaint that he is a Biden opponent and critic, not that he is suffering discrimination due to his political party. Also, the Second Circuit (Leval, Wesley and Bianco) holds,  he does not belong to a protected class under Section 1985(3). He belongs to a political class, not a racial, gender, or religious class. While he argues that he does belong to a racial or religious class because a disproportionate number of evangelical Christians and African-Americans support him, along with political conservatives, the Second Circuit rejects this argument as an effort to incorporate a disparate impact angle to the framework, which the Second Circuit denied in Reynolds v. Barrett, 685 F.3d 193 (2d Cir. 2012).

2d Department sustains sexual harassment finding against Boston Market

The Appellate Division has sustained a finding from the New York State Division of Human Rights that found a female employee was sexually harassed at Boston Market in Orange County. The Second Department also holds the damages and penalties were proper under the New York State HRL. The liability finding broadly interprets the Human Rights Law in that Boston Market was liable because the harasser was the plaintiff's supervisor.

The case is In the Matter of the New York State Division of Human Rights v. Boston Market Corp, issued on October 14. 

Bless Clarke was hired by Boston Market in July 2017 as a cashier, food server, and crew member, working there until April 2020. Nicholas Foreman,worked at the restaurant from October to approximately November 19, 2019. Employees recognized Foreman as the manager even though his formal managerial status was unclear. In the presence of Assistant General Manager Robert Smith, Foreman made sexually inappropriate comments to Clarke. Smith giggled at these comments but did nothing to stop them. Foreman also sometimes pinched Clarke’s leg, prompting her to tell him not to touch her. Clarke additionally observed Foreman appearing intoxicated at work and reported this to Smith, who said he would notify General Manager Michele Carbon.

On November 18, 2019, Foreman began following Clarke at work. She attempted to avoid him by moving into the dining room, but he hugged her, pinned her arms, and forcibly kissed her on the mouth. Clarke struck Foreman, ran to the bathroom, and began crying. Clarke reported the assault to Smith, who contacted Carbon. Carbon instructed Smith to send Foreman home. Smith told Clarke to remain in the bathroom while Foreman was directed to leave. Ten minutes later, Clarke emerged and discovered that Foreman was still present. He apologized and claimed he had been “just trying to take the sickness” out of her, referring to her cold. Foreman was sent home. The following day, Carbon reviewed security-camera footage of the incident and terminated Foreman's employment.

Following the harassment and assault, Clarke experienced paranoia, depression, anxiety, and panic attacks that continued at least through December 2021. She avoided public places because she feared encountering Foreman and experiencing another panic attack. She also had difficulty eating. In May 2021, she began counseling, during which she discussed the sexual harassment.

On these facts, the SDHR found Boston Market liable for sexual harassment, awarding Clarke $75,000 for pain and suffering and fining Boston Market $50,000. The Second Department, which defers to the SDHR's factual findings in these cases, holds there is substantial evidence to support the liability findings and that the damages and fine are not excessive. 

The Appellate Division does not analyze the factual record or explain how the SDHR reached its determination, but what strikes me about this case is that the SDHR prevailed even though Carbon appeared to take remedial action after learning about the sexual harassment, firing Foreman the next day after reviewing the security camera footage. But, according to SDHR's appellate brief, Boston Market lost the case because the SDHR found that Foreman was a supervisor. The brief states, "The Division found Boston Market liable for Mr. Foreman’s sexual harassment of Ms. Clarke. It reasoned that because Mr. Foreman is a supervisor, 'that harassment is attributable to Boston Market.'” SDHR appears to interpret the amended New York State HRL to permit liability in this circumstance, a departure from the prior statute (and Title VII), which required the plaintiff to show that management condoned or supported the harassment. What also clinched victory for the SDHR was that the restaurant did not stop Foreman when he had harassed Clarke on prior occasions.

To the extent an SDHR brief in the Appellate Division represents a policy pronouncement useful for other cases, here is the SDHR's analysis, departing from the First Department's interpretation of the NYSHRL as well as the Supreme Court's leading Title VII cases on this issue, Faragher and Ellerth:

the Division submits that the language of EXEC. LAW §296(1)(h), in conjunction with its legislative history and the evolution of a stricter liability standard in case law construing the state Human Rights Law in the wake of Faragher and Ellerth, weigh against the interpretation that the First Department has given this new subsection respecting vicarious liability as dependent on supervisory status. The provision of the New York City Code requiring that, in order for an employer to be liable under the City Human Rights Law, either the wrongdoer must be a supervisor or the employer condoned the discriminatory act has never had a statutory counterpart in the state Human Rights Law. 

 The Commissioner's order in this case will help plaintiffs win their cases provided the plaintiff's supervisor committed the harassment, regardless of management's response. It reads:

Effective August 12, 2019, the Human Rights Law was also amended to ensure that the provisions of the law be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws have been so construed. The amendment further mandated that exceptions to and exemptions from the provisions of the law shall be construed narrowly in order to maximize deterrence of discriminatory conduct. See Human Rights Law § 300. As a result of these amendments, the case law that developed under the prior “severe or pervasive” standard is no longer applicable to harassment cases. Harassment claims are now analyzed more like claims under the New York City Human Rights Law than federal law. See Wellner v. Montefiore Med. Ctr., 2019 WL 4081898 (S.D.N.Y. 2019)

Complainant has proven that she was sexually harassed by Foreman, who engaged in inappropriate behavior towards her throughout his employment with Boston Market by making comments about her body and undergarments and touching her legs. On November 18, 2019, Foreman attacked Complainant by hugging her and kissing her on the lips while she resisted him. Foreman’s conduct subjected Complainant to inferior terms and conditions of employment because of her sex and constituted sexual harassment under the Human Rights Law. Because Foreman was a supervisor, that harassment is attributed to Boston Market.

 

Welcome to New York Times v. Sullivan

A Republican Congressman sued NBC over a Rachel Maddow's comment that he had accepted material from a Russian agent without notifying the authorities. That comment was apparently false, but Maddow got the "news" from a Politico article. The congressman, Devan Nunes, sued NBC for defamation. The lawsuit fails because Nunes cannot prove actual malice.

The case is Nunes v. NBC Universal, a summary order issued on October 15. Defamation cases in the United States are difficult to win when the plaintiff is a public figure, like a Congressman. This is because the Supreme Court in New York Times v. Sullivan (1964) said public figures have to prove actual malice. This heightened standard, said the Court, ensures public debate will not be quashed by fear of a lawsuit, and that people may get their facts wrong on public issues so long as they do not knowingly repeat false information or rely on untrustworthy news sources.

Plaintiff wanted the Second Circuit (Calabresi, Lee and Nardini) to disregard the actual malice test. There is a movement afoot to accomplish just that, and some conservatives on the Supreme Court had suggested it is time to do so. But we are not there yet, and actual malice is embedded in our constitutional system as much as the Dormant Commerce Clause and Sovereign Immunity. Besides, New York law recognizes the actual malice test. Either way, plaintiff has to prove actual malice.

Summary judgment was proper on this claim because plaintiff cannot show that Rachel Maddow knowingly repeated a falsehood. In relying on the Politico article, she acted reasonably under the constitutional order, as Politico is not the Weekly World News. The Second Circuit writes, 

"In New York Times, the Supreme Court held that a defendant’s reliance on a responsible source negates a finding of “the recklessness that is required for a finding of actual malice.” “Similarly, this Court has held that where reporters’ false statements in an article were based on reliable sources, the defendant could hardly be accused of gross negligence, much less actual malice.” Nunes provided no evidence at the summary judgment stage that provided any basis for a reasonable inference that Maddow or Gnazzo should have regarded the Politico article as unreliable. 

 

Employees get paid when they are required to show up early but there is no work to perform

The Second Circuit has reinstated a wage-and-hour lawsuit alleging that a supermarket required employees to arrive 15 minutes before their shifts but did not pay them when managers were late unlocking the stores. The court holds that the Fair Labor Standards Act can require employers to compensate employees for waiting time when they are required to report for work at a designated time but management prevents them from actually starting work. 

The case is Santos v. Lidl US, LLC, issued on October 13. Santos worked as a store clerk at Lidl grocery stores on Long Island. Her opening shift was scheduled to begin at 5:00 a.m., but Lidl required her and other employees to arrive 15 minutes earlier. Sometimes, the stores remained locked because opening managers did not arrive until 5 a.m. or later. Picture the employees standing around in the parking lot and outside the front door at 4:45 a.m. waiting for a supervisor to show up and let them into the store. 

Employees could not clock in until they entered the stores. When managers were late, employees had to wait outside without pay despite having reported to work at the time Lidl required. This happened approximately once a week, costing plaintiff 15 minutes of wages. During five weeks, the unpaid time also resulted in lost overtime compensation.

Plaintiff sued under the FLSA and New York Labor Law, seeking unpaid wages on behalf of herself and other employees. The district court dismissed the claims, reasoning that the Portal-to-Portal Act excluded the waiting time from compensable work. The Court of Appeals revives the case.

The Second Circuit (Robinson, Rakoff [D.J.], and Sullivan in dissent) notes that the Portal-to-Portal Act generally excludes time spent on activities preliminary or subsequent to an employee’s principal job duties. But the statute does not categorically exclude all waiting time before a shift. DOL regulations distinguish between employees who are “engaged to wait” and those who are “waiting to be engaged.” An employee who voluntarily arrives early and waits for work generally is not entitled to compensation for that time. By contrast, an employee who must report at a particular hour, is ready and willing to work, and cannot begin working for reasons beyond the employee’s control may be entitled to compensation.

Plaintiff plausibly alleges compensable waiting time. At the pleading stage, the court had to accept her allegations that Lidl required her to arrive at 4:45 a.m. and that she sometimes could not enter the store because her manager had not arrived. At the same time, the court rejected Lidl’s argument that the claim was too trivial to be actionable under the FLSA’s de minimis doctrine. Under Second Circuit precedent, courts consider the difficulty of recording the time, the aggregate amount of compensation at stake, and the regularity of the activity. Because Santos alleged 15 minutes of unpaid time each week, the court could not conclude from the complaint that the time was insignificant or too difficult to record. Employers cannot automatically disregard regularly occurring, readily ascertainable working time merely because each individual period is short.

Plaintiff loses retaliation case on appeal

A plaintiff can establish a prima facie case of retaliation and still lose at summary judgment. That is what happened to an Office of Mental Health employee whose discrimination complaint was followed by a series of disciplinary actions. The plaintiff loses because defendant had documented her performance problems before she ever filed the complaint.

The case is Rahman v. Carlin, a summary order issued on October 6. Plaintiff worked for OMH. On April 29, 2019, she filed complaints with the State Division of Human Rights and the EEOC, alleging discrimination over her failure to receive a promotion and equal pay. She claimed the discrimination was based on her race, color, and national origin. She later sued, claiming defendants retaliated against her because she filed that complaint.

The district court granted defendants summary judgment. The Second Circuit (Jacobs, Merriam and Schwartz) affirms. Plaintiff identified several allegedly retaliatory actions, including two interrogations, paid administrative leave, a disciplinary notice, and an unsatisfactory performance evaluation. She also argued that earlier performance evaluations were also adverse actions. The Second Circuit stated that, under Section 1983 plaintiff must show a materially adverse employment action, while the NYSHRL reaches conduct reasonably likely to deter someone from opposing discrimination. More on these dueling legal standards at the end of this blog post.

Plaintiff loses because her performance problems predated her discrimination complaint. The record showed concerns about her work performance before April 29, 2019. An April 17 email discussed concerns about her knowledge of workplace policies, failure to check email, responsiveness, and interactions with a supervisor. Later evaluations and disciplinary measures continued to cite documented performance problems. Nor could plaintiff identify any comparators who were treated differently. And the challenged actions were not sufficiently close in time to her April 2019 complaint to support an inference of retaliation.

The Court says the retaliation test under Section 1983 requires a showing that plaintiff suffered a material adverse action, in contrast to state law's dissuasion test. Is that correct? The Second Circuit cites Buon v. Spindler, 65 F.4th 64 (2d Cir. 2023), for this proposition, but Buon was a disparate treatment case, not a retaliation case. Disparate treatment cases apply a different standard, one that is less favorable for plaintiffs than the dissuasion test in retaliation cases. What is more, Buon predates the Supreme Court's ruling in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), which rejected the materiality test applied in Buon for a more forgiving test, requiring that plaintiffs in disparate treatment cases only show "some harm," not material or significant harm. The analysis in Buon is outdated. This apparent error would not have made a difference in the outcome of this appeal, as the Court of Appeals also rejected plaintiff's case under the dissuasion test under state law.