In Owens v. PriceWaterHouseCoopers LLC, 1:24-cv-5517-GHW, 2025 WL 1677001 (S.D.N.Y. June 12, 2025), the court clarified the standard for “sexual harassment” claims asserted under the New York City Human Rights Law.
The court explained:
The question, accordingly, becomes how to define the subset of discriminatory conduct that is also “sexual harassment.” As stated above, the NYCHRL does not explicitly define sexual harassment. Based on the text of the NYCHRL, on agency guidance, and on the relevant case law, the Court concludes that for the purpose of the EFAA, conduct constituting sexual harassment under the NYCHRL should be defined as “unwelcome verbal or physical behavior based on a person’s gender,” regardless of whether that behavior is lewd or sexual in nature. Stop Sexual Harassment Act, NYC Commission on Human Rights, https://www.nyc.gov/site/cchr/law/sexual-harassment-training-main.page (last visited May 21, 2025).
This standard is drawn from the guidance published by the New York City Commission on Human Rights (the “Commission”), whose interpretation of the NYCHRL is persuasive authority. See Wang v. James, 40 N.Y.3d 497, 501–02, 203 N.Y.S.3d 889, 227 N.E.3d 323 (2023) (“Deference is accorded to an agency’s interpretation of a statute when the interpretation involves the specialized competence or expertise the agency has developed in administering the statute.”). The NYCHRL provides that the Commission “shall post conspicuously on the commission’s website online resources about sexual harassment.” N.Y.C. Admin. Code § 8-132(a). On the Commission’s website, sexual harassment is defined as “unwelcome verbal or physical behavior based on a person’s gender.” Stop Sexual Harassment Act, NYC Commission on Human Rights, https://www.nyc.gov/site/cchr/law/sexual-harassment-training-main.page (last visited May 21, 2025). Further, in accordance with the NYCHRL’s provision that employers “conspicuously display an anti-sexual harassment rights and responsibilities poster designed by the commission,” N.Y.C. Admin. Code § 8-107(29)(a), the Commission posted example posters on its website, which also define sexual harassment as “unwelcome verbal or physical behavior based on a person’s gender,” Stop Sexual Harassment Act Notice, NYC Commission on Human Rights, https://www.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Notice8.5×14-English.pdf (last visited May 21, 2025).
The Court declines to adopt a requirement that the unwelcome verbal or physical behavior be lewd or sexual in nature. PwC, citing Singh, argues that Owens must plead “romantic, sexual, or lewd conduct” to allege conduct constituting sexual harassment. Compel MOL at 14; see Singh, 750 F. Supp. 3d at 257 (“[W]hen sexual harassment claims have been litigated under the NYCHRL, successful plaintiffs have alleged conduct or language of the same kind of romantic, sexual, or lewd nature.”). In Singh, Judge Oetken held that the plaintiff’s allegations of mistreatment based on her gender did not constitute sexual harassment. Singh, 750 F. Supp. 3d at 257–58. Among other things, she alleged that her boss credited male employees with her accomplishments, ignored her contributions, assigned projects to male employees over her, interrupted her, questioned whether her pregnancy would impact her job, and subjected her to baseless performance criticisms. Id. While the court held that such conduct “surely constitute[s] gender discrimination under the NYCHRL,” it did not rise to the level of “sexual harassment.” Id. at 258. To the extent that Singh requires that a plaintiff allege romantic, sexual, or lewd conduct to allege conduct constituting sexual harassment, the Court departs from Singh.6
Rather, the Court holds that under the NYCHRL, conduct constituting sexual harassment is unwelcome verbal or physical behavior based on a person’s gender, regardless of whether that behavior is lewd or sexual in nature. Put simply, if a plaintiff alleges that they were harassed by being shouted at or shoved and that the harassment or assault was motivated by their gender, the Court’s analysis need not turn on whether the words shouted or the contact made was sexual in nature.
Applying the law, the court held that plaintiff “plausibly alleges conduct constituting sexual harassment under the NYCHRL” because she “plausibly alleges that Rawal harassed her with unwelcome verbal behavior on the basis of her gender” and “denigrated her in front of subordinates and verbally threatened and berated her, sometimes yelling at her in front of directors” and, thus, denied defendants’ motion to compel arbitration.