In Shibetti v. Restaurant, No. 517343/20, 2022 WL 1199333 (N.Y. Sup Ct, Kings County Apr. 21, 2022), the court, inter alia, held that plaintiffs sufficiently alleged claims of sex (including pregnancy) discrimination, sexual harassment, hostile work environment, and retaliation under the New York City Human Rights Law.
From the decision:
Sexual harassment “is one species of sex- or gender-based discrimination” (Williams v New York City Hous. Auth., 61 AD3d 62, 75 [1st Dept 2009]). “There is no ‘sexual harassment provision’ of the law to interpret; there is only the provision of the law that proscribes imposing different terms, conditions and privileges of employment based, inter alia, on gender (Administrative Code § 8-107 [1] [a])” (id.). The NYCHRL also prohibits an employer from refusing to provide a reasonable accommodation to the needs of an employee for the employee’s pregnancy (NYCHRL § 8-107 [22]). “Discrimination on the basis of pregnancy is a form of gender discrimination” (Goston-Green v City of New York, 184 AD3d 24, 34 [2d Dept 2020]).
To state a claim for discrimination under the NYCHRL, a plaintiff must allege facts plausibly suggesting differential treatment of some degree based on a discriminatory motive; ‘the NYCHRL does not require either materially adverse employment actions or severe and pervasive conduct’ ” (Tulino v City of New York, US Dist Ct, SD NY, May 19, 2016, Furman, J.). “To plead a sex discrimination claim under the NYCHRL, Plaintiff need only allege facts showing that she was treated ‘less well’ because of her sex” (Ibrahim v Fidelity Brokerage Services LLC, US Dist Ct, SD NY Jan. 9, 2020, Caproni, J.; see also Ayers v Bloomberg, L.P., 2022 NY Slip Op 01762 [2d Dept Mar. 16, 2022] [“Under the NYCHRL, the plaintiff must establish that she or he was subject to an unfavorable employment change or treated less well than other employees on the basis of a protected characteristic”]; Bilitch v New York City Health and Hospitals Corp., 194 AD3d 999, 1003 [2d Dept 2021]).
The NYCHRL does not distinguish between claims of ‘discrimination’ and ‘harassment’ or hostile work environment, which is a term of art borrowed from the more restrictive Title VII jurisprudence” (Ibrahim, supra). “To state a hostile work environment claim under the NYCHRL, a plaintiff must simply allege facts tending to show they were subject to unwanted gender-based conduct” (Tulino, supra. [internal quotation marks omitted]). “Significantly, the NYCHRL imposes liability for harassing conduct even if that conduct does not qualify as severe or pervasive . . .” (id. internal quotation marks omitted]).
Here, accepting the facts as pleaded in the amended complaint as true, and according plaintiffs the benefit of every possible favorable inference, the courts finds that plaintiffs have stated a cause of action against moving defendants for sex and pregnancy discrimination. The amended complaint contains multiple allegations suggesting that plaintiffs were treated differently and “less well” due to their sex (see Ayers v Bloomberg, supra). Specifically, the numerous and detailed allegations of harassment against Kamal, Essam, Tzaquitzal and Solis adequately plead that plaintiffs suffered sex discrimination and a hostile work environment. The amended complaint adequately pleads that moving defendants unlawfully discriminated against Puccini because she was pregnant, failed to provide her with work hours and unlawfully removed her from the schedule while she was pregnant in violation of NYCHRL § 8-107 (1) and (22).
The affidavits and deposition transcript excerpts submitted by moving defendants do not negate the truth of the allegations in the amended complaint and do not conclusively establish that plaintiffs have no causes of action (see Guggenheimer, 43 NY2d at 275; Hendrickson, 102 AD3d at 258). Adel and Adam may have been aware of the sexual harassment and gender discrimination at the Parkview Diner by virtue of being onsite and through personal observation. Indeed, Ibrahim’s affidavit suggests that Adel and Adam have long known about Kamal’s sexual harassment of female employees. In addition, the fact that sexual harassment at the Parkview Diner is alleged by multiple employees against four male employees suggests a level of pervasiveness of a discriminatory environment such that Adel and Adam could not help but be aware of it. Further, the allegation that Adel removed Puccini from the Parkview Diner schedule when she was six months pregnant and told her to “come back after you give birth” suggests that the Parkview Diner management, including Adam and Adel, were personally involved in creating an environment where female employees were treated “less well” than male employees. Further, Adam’s deposition testimony that he was personally involved in setting the Parkview Diner schedule suggests that he was involved in management decisions and supports a liberal view of the pleadings of the amended complaint.
The court also held that one plaintiff, Puccini, sufficiently alleged retaliation, citing their contention that they were terminated “several weeks” after asserting claims in a federal lawsuit. The court further noted that the fact that plaintiff acknowledged receiving a written warning about missing work did “not prove that unlawful retaliation did not occur” and that “the timing of [plaintiff]s termination raises factual questions regarding the cause of her termination.”