In McIntosh v City of New York, No. 505675/2022, 2023 N.Y. Slip Op. 50761(U), 2023 WL 4753854 (N.Y. Sup. Ct. Kings Cty. July 10, 2023), the court, inter alia, granted defendant’ motion to dismiss plaintiff’s hostile work environment claims asserted under the New York State and City Human Rights Laws.
This decision operates as a good summary of what does, and does not, rise to the level of unlawful discriminatory conduct under these statutes.
The court explained:
Here, accepting as true the facts alleged in the Amplified Amended Complaint, and according Plaintiffs the benefit of every favorable inference, the Amplified Amended Complaint fails to state causes of action to recover damages for gender discrimination, hostile work environment, and unlawful retaliation as to either Plaintiff under the NYSHRL and NYCHRL (see Polite v Marquis Marriot Hotel, 195 AD3d 965, 967 [2d Dept 2021]). “[T]he broader purposes of the [NYSHRL and NYCHRL] do not connote an intention that the law operate as a general civility code” (Williams v New York City Hous. Auth., 61 AD3d 62, 79 [1st Dept 2009] internal quotation marks omitted], lv denied 13 NY3d 702 [2009]). Significant harms must be distinguished from ordinary tribulations of the workplace. Rude treatment by coworkers, callous behavior and harsh criticisms by one’s superiors, or differences of opinion and personality conflicts with one’s supervisor, are not actionable as either discriminatory, retaliatory, or impermissibly hostile under either the NYSHRL or NYCHRL, in the absence (as relevant here) of the underlying gender-based motives.
As an initial matter, the Amplified Amended Complaint fails to allege circumstances giving rise to an inference of gender-based, or gender-motivated discrimination as against either Plaintiff (see Ayers v Bloomberg, L.P., 203 AD3d 872, 874 [2d Dept 2022]). Further, none of the alleged conduct on Defendants’ part subjected either Plaintiff to: (1) the inferior terms, conditions or privileges of employment because of her gender under the NYSHRL (see Executive Law § 296 [1] [h] [effective October 11, 2019]); or (2) an unfavorable change or a less-well treatment than other employees on the basis of her gender under the NYCHRL, sufficient to support either Plaintiff’s hostile work environment claim.
The court likewise dismissed plaintiff’s retaliation claim, since “she was not engaged in a “protected activity”; in other words, her out-of-title (or out-of-level) grievance with her union did not oppose or complain about unlawful discrimination.”