In Luo v. AIK Renovation Inc. et al, 23-cv-5878 (LJL), 2023 WL 8113437 (S.D.N.Y. Nov. 22, 2023), the court, inter alia, held that plaintiff sufficiently alleged hostile work environment claims based on his Chinese descent, and denied defendant’s motion to dismiss.
After determining that plaintiff sufficiently allege disparate treatment, the court evaluated his hostile work environment claims.
From the decision:
Defendants argue that Plaintiff’s hostile work environment claims should be dismissed because, taking his allegations as true, he heard only one statement by Renosis in connection with another potential employee of Chinese origin and two racist jokes about persons of other races, and was told by an unidentified individual that a leader referred to him as “Sino.”2 Dkt. No. 9 at 9. Defendants thus would have the Court accept that Defendants’ comments were too episodic such that, as a matter of law, they cannot suffice to make out a claim for hostile work environment. But just as whether a slur is sufficiently severe must be judged by its content, see Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 23–24 (2d Cir. 2014); see also Daniel v. T & M Prot. Res., LLC, 689 F. App’x 1, 2 (2d Cir. 2017) (summary order); Spencer v. Glob. Innovative Grp., LLC, 2023 WL 6633860, at *10 (S.D.N.Y. Oct. 12, 2023), so too must the Court consider the duration of the plaintiff’s employment, see Orrego v. Knipfing, 564 F. Supp. 3d 273, 286 (E.D.N.Y. 2021). Ethnic or racial slurs spread out over a period of years, while inexcusable, are different from slurs concentrated over a period of weeks. See Schwapp v. Town of Avon, 118 F.3d 106, 110–11 (2d Cir. 1997); Sylla v. N.Y.C. Dep’t of Educ., 2023 WL 2667072, at *8 (E.D.N.Y. Mar. 28, 2023); Sherman, 2020 WL 2136227 at *13. Plaintiff alleges that he was subject to a hostile work environment over a period of weeks—from May 30, 2022 when he began his employment to July 5, 2022, when AIK ended his employment. During that time period, Plaintiff heard: expletive-laden, racist remarks about a Chinese job applicant, Dkt. No. 3 ¶15; two racist jokes regarding terminated workers, id. ¶ 16; that an AIK leader had called him an anti-Chinese slur, id. ¶ 17; and “several” uses of the N-word in reference to Black people, id. Given the quantity, frequency, and severity of those remarks, Plaintiff has stated a hostile work environment claim under Title VII and the NYSHRL.
It further held that, in light of the determination as to plaintiff’s claims under federal and state law, “[a] fortiori he has also stated a hostile work environment claim under the more permissive NYCHRL.”