Court Reinstates “Too Cute” Gender Discrimination Claims Under NYS and NYC Human Rights Laws

In Edwards v. Nicolai, 2017 NY Slip Op 06235 (App. Div. 1st Dept. Aug. 22, 2017), the court modified a lower court’s Order (issued by Judge Shlomo Hagler) dismissing plaintiff’s causes of action for gender discrimination in violation of the New York State and New York City Human Rights Laws, to deny defendant’s motion as to those claims.[1]In addition to addressing plaintiff’s gender discrimination claims, the court affirmed the lower court’s Order denying defendant’s motion to dismiss plaintiff’s defamation cause of action.

Here is an excerpt of the court’s summary of the facts/allegations:

Defendant Charles V. Nicolai is married to defendant Stephanie Adams. Nicolai and Adams are co-owners of Wall Street Chiropractic and Wellness (WSCW). Nicolai is the head chiropractor and oversees the medical operations, while Adams is the chief operating officer. In April of 2012, Nicolai hired plaintiff, Dilek Edwards, as a yoga and massage therapist, and thereafter was her direct supervisor.

The complaint alleges that the relationship between Nicolai and plaintiff was “purely professional” and that Nicolai “regularly praised Plaintiff’s work performance throughout her period of employment.” In June 2013, however, Nicolai allegedly “informed Plaintiff that his wife might become jealous of Plaintiff, because Plaintiff was too cute.'” Approximately four months later, on October 29, 2013, at 1:31 a.m., Adams sent Edwards a text message stating, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” A few hours later, at 8:53 a.m., plaintiff allegedly received an email from Nicolai stating, ” You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.'”

Applying the law, the court held (as to plaintiff’s gender discrimination claims):

The court erred … in dismissing the causes of action for gender discrimination under the NYSHRL and the NYCHRL. It is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination (see e.g. Williams v New York City Hous. Auth., 61 AD3d 62, 75 [1st Dept 2009], lv denied 13 NY3d 702 [2009] [sexual harassment is “one species of sex- or gender- based discrimination”]; see also Oncale v Sundowner Offshore Servs., Inc., 523 US 75, 80 [1998]; King v Board of Regents of Univ. of Wis. Sys., 898 F2d 533, 539 [7th Cir 1990]). Here, while plaintiff does not allege that she was ever subjected to sexual harassment at WSCW, she alleges facts from which it can be inferred that Nicolai was motivated to discharge her by his desire to appease his wife’s unjustified jealousy, and that Adams was motivated to discharge plaintiff by that same jealousy. Thus, each defendant’s motivation to terminate plaintiff’s employment was sexual in nature.

Defendants’ reliance on certain cases in the “spousal jealousy” context is misplaced. Because these cases involve admitted consensual sexual affairs between the employer and the employee, they are distinguishable (see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 332 [2003]; see also Mauro v Orville, 259 AD2d 89, 92-93 [3d Dept 1999], lv denied 94 NY2d 759 [2000]; Tenge v Phillips Modern Ag Co., 446 F3d 903, 910 [8th Cir 2006]). In such cases, it was the employee’s behavior – not merely the employer’s attraction to the employee or the perception of such an attraction by the employer’s spouse – that prompted the termination. Here, assuming the truth of the allegations of the amended complaint, as we are required to do upon a motion to dismiss, plaintiff had always behaved appropriately in interacting with Nicolai, and was fired for no reason other than Adams’s belief that Nicolai was sexually attracted to plaintiff. This states a cause of action for gender discrimination under the NYSHRL and the NYCHRL.

In addition, the court noted that “[w]hile … it is not necessarily unlawful for an employer to terminate an at-will employee at the urging of the employer’s spouse, such a discharge is actionable if the spouse urged the discharge for unlawful, gender-related reasons.” Here, assuming plaintiff’s allegations are true, “what makes her discharge unlawful is not that Nicolai’s wife urged him to do it, but the reason she urged him to do it and the reason he complied.”

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1. In addition to addressing plaintiff’s gender discrimination claims, the court affirmed the lower court’s Order denying defendant’s motion to dismiss plaintiff’s defamation cause of action.