In O’Rear v. Armando Diaz et al, 24 Civ. 1669, 2025 WL 283169 (S.D.N.Y., Jan. 23, 2025), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of sexual harassment asserted under the New York City Human Rights Law (NYCHRL).
In this case, the plaintiff alleges that, after a holiday happy hour, defendant Diaz sexually assaulted and raped her.
The court summarized the facts, based on plaintiff’s amended complaint, as follows:
On December 15, 2022, Merkley hosted a holiday happy hour for its employees. Id. ¶ 10. At the happy hour, O’Rear had several drinks with coworkers, including Diaz. Id. Afterwards, O’Rear and a group of coworkers moved to a different bar, where Diaz bought multiple rounds of drinks for the group. Id. ¶ 11. As the night progressed, O’Rear became intoxicated to the point of blacking out. Id. ¶ 15. Late in the night, O’Rear stated she needed to take the subway to get home. Id. Diaz offered to walk her to the subway station. Id. However, instead of doing so, Diaz directed O’Rear to Merkley’s office. Id. ¶ 16. At this point, O’Rear alleges, she “was fully blacked out.” Id. Diaz took O’Rear to a bathroom near a Merkley conference room. Id. ¶ 17. The last thing she remembers from that night is that Diaz “had his penis out of his pants,” and that she refused to engage in oral sex. Id. She woke up the next morning “with no recollection of how she got home,” Id.
Initially, O’Rear “believed no sexual activity had taken place” between her and Diaz. Id. ¶ 18. However, on May 4, 2023, O’Rear learned from Diaz that the two had engaged in penetrative sex on December 15. Id. ¶ 29. O’Rear alleges that the sexual encounter was not consensual on her part because she had been too intoxicated to consent. Id. ¶ 15. She therefore alleges that Diaz sexually assaulted and raped her that night.
After concluding that plaintiff sufficiently alleged a claim of sexual battery, the court turned to its assessment of plaintiff’s sexual harassment under the NYCHRL:
The NYCHRL’s standards for liability for sexual harassment are more permissive than those of Title VII. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). Unlike Title VII, the NYCHRL does not require a plaintiff claiming sexual harassment to prove that the conduct was severe and pervasive. It requires only that the plaintiff demonstrate she was subjected to “unwanted gender-based conduct.” Erasmus v. Deutsche Bank Americas Holding Corp., No. 15 Civ. 1398 (PAE), 2015 WL 7736554, at *7 (S.D.N.Y. Nov. 30, 2015) (quoting Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 76 (1st Dep’t 2009)); see Gallagher v. AEG Mgmt. Brooklyn, LLC, No. 16 Civ. 4779, 2017 WL 2345658, at *7 (E.D.N.Y. May 30, 2017) (at motion to dismiss stage, a complaint need only plead “evidence of unwanted gender-based conduct”) (quoting Lenart v. Coach Inc., 131 F. Supp. 3d 61, 69 (S.D.N.Y. 2015)). To prevail, the plaintiff “need only demonstrate ‘by a preponderance of the evidence that she has been treated less well than other employees because of her gender.’ ” Mihalik, 715 F.3d at 110 (quoting Williams, 61 A.D.3d at 76). However, “district courts must be mindful that the NYCHRL is not a general civility code.” Id. (quoting Williams, 61 A.D.3d at 76).
Here, the court concluded that “sexual assault is quintessentially unwanted gender-based conduct” and therefore denied defendant’s motion to dismiss plaintiff’s NYCHRL claim.