In Nelson v. HSBC Bank USA (Sept. 13, 2011), the Appellate Division, Second Department clarified the standard governing “hostile work environment” discrimination claims – here, based on the plaintiffs’ race – brought under the NYC Human Rights Law. Following a jury verdict for defendant, the appellate court ordered a new trial, finding that the jury charge failed to embody the breadth of that law.
Initially, the court held that “the current liberalized standards of construction applicable to the New York City Human Rights Law should be applied retroactively”.
Next, the court held that the City law, unlike state and federal law, does not require that the harassment be “severe or pervasive” to be actionable, reasoning that “there is a wide spectrum of harassment cases falling between severe or pervasive on the one hand and a merely offensive utterance on the other”.
Rather, “[i]n light of the “uniquely broad and remedial purposes” of the NYCHRL – as reflected in amendments implemented as part of the Local Civil Rights Restoration Act of 2005 – “questions of severity and pervasiveness are applicable to consideration of the scope of permissible damages, but not to the question of underlying liability”.
Under the NYCHRL, “liability for a harassment/hostile work environment claim is proven where a plaintiff proves that he or she was treated less well than other employees because of the relevant characteristic”. This standard is, however, subject to “an affirmative defense whereby defendants can still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences”.
Here, the jury charge improperly instructed the jury that proof that unwelcome racial conduct was “severe and pervasive” is an element of a cause of action alleging hostile work environment pursuant to the City (and State) Human Rights Laws. This error, held the court, “was not harmless” because the “jury could have reasonably found that the harassment complained of by the plaintiffs, while not severe and pervasive, constituted more than petty slights and trivial inconveniences.”