Plaintiffs Sufficiently Alleged Sexual Harassment and Age Discrimination Claims Under the New York City Human Rights Law

In Kennington v. 226 Realty LLC, the court denied defendant’s motion to dismiss plaintiffs’ complaint alleging sexual harassment and age discrimination.

Although the court held only that the plaintiffs state a claim for relief (without determining the ultimate issue of liability), this case is instructive as to how to plead discrimination claims under the New York City Human Rights Law (NYCHRL).

The court highlighted the breadth of the NYCHRL relative to its federal and state-law counterparts:

[The] NYCHRL is different from the comparable federal and state laws, which resemble each other. In the [NYCHRL] formulation, there is no greater danger to the health, morals, safety and welfare of the city and its inhabitants than the existence of groups prejudiced against one another and antagonistic to each other because of their actual or perceived differences. Enacted to be “the most progressive [anti-discrimination law] in the nation, [the] NYCHRL is to be construed broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.

Sexual Harassment

“To state a claim for sexual harassment [under the NYCHRL], a plaintiff must show that (1) he belongs to a protected group, (2) he was subjected to unwelcome sexual harassment and, (3) the harassment complained of was based upon his sex.”

The court held that plaintiffs Kennington and Kastrat sufficiently alleged sexual harassment:

Deeming the allegations in the complaint to be true, these elements have been met with respect to the claims asserted by Kennington and Kastrat, who also state a claim for hostile work environment. … The [NYCHRL, unlike federal or state laws] does not require the alleged sexual harassment to be severe or pervasive to be actionable. The harassment must just be more than non-actionable petty slights and minor inconveniences.  A few comments would suffice. In fact, under the liberal standards applicable to NYCHRL, all that is needed to state a claim of sexual harassment is for the plaintiff to have been treated less well than other employees because of her gender. The allegations that Kennington and Kastrat were fired because they rebuffed unwelcome sexual advances satisfies this minimal standard.

Vicarious Liability

Defendants argued that even if plaintiffs stated the elements of a hostile work environment claim, defendant Hotel Edison was not vicariously liable “because the complaint does not allege that the Hotel knew, or should have known, of the unwelcome sexual advances.”  The court disagreed.

The court explained the standard for vicarious liability under the NYCHRL:

NYCHRL imposes liability on the employer in three instances: (1) where the offending employee exercised managerial or supervisory responsibility …; (2) where the employer knew of the offending employee’s unlawful discriminatory conduct and acquiesced in it or failed to take immediate and appropriate corrective action; and (3) where the employer should have known of the offending employee’s unlawful discriminatory conduct yet failed to exercise reasonable diligence to prevent [it]. [NYCHRL] section 8-107(13) [further provides] for strict liability in employment context for acts of managers and supervisors; also liability in employment context for acts of co-workers where employer knew of [the] act and failed to take prompt and effective remedial action or should have known and had not exercised reasonable diligence to prevent.

Notably, whether the employer “encourages, condones or approves the unlawful discriminatory acts” – which is relevant under the State Human Rights Law – is irrelevant under the NYCHRL, “so long as the offending employee exercised managerial or supervisory control.”

Applying these standards, the court held that “each of the individual defendants may also be held liable under” the NYCHRL:

Canavan was Hotel Edison’s general manager, with total authority to hire and fire. Clearly, he was the offending employee with respect to Kastrat, so under the standards set forth above, she has asserted a valid claim against both Canavan and Hotel Edison. The ownership interest required for personal liability under the state’s Human Rights Law is not required by NYCHRL. Kennington’s claim based on Sowa’s conduct is less clear-cut. The first amended complaint alleges that Sowa used her personal relationships with Canavan and with the Front Desk Manager to get Kennington fired in retaliation for being spumed by him. While, as defendants suggest, this ‘cat’s paw’ theory is too farfetched even for a claim under NYCHRL, the
complaint also alleges that Hotel Edison and Canavan acquiesced in, encouraged, condoned and ratified Sowa’s sexual harassment of Kennington. Given this allegation, which must be deemed true and meets the traditional standard, the court will not dismiss Kennington’s claims at this stage. With respect to Sowa’s personal liability, her status at Hotel Edison is more dubious, but since she has the title of Assistant Front Desk Manager, the court will allow plaintiffs to explore her managerial responsibilities at trial.

Age Discrimination

The court also denied defendants’ motion to dismiss plaintiffs’ age discrimination claims. To state a claim for employment discrimination under the State and City Human Rights Laws, each plaintiff was required to show that

(1) [he] is a member of a protected class; (2) [he] was qualified to hold the position; (3) [he] was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination.

Plaintiffs sufficiently alleged these elements:

[Plaintiffs alleged] that defendants were qualified for their respective positions and were fired when they were over 50 years of age, which would satisfy the first three elements. [Plaintiffs alleged the requisite inference of discrimination] by alleging that: Ahearn and Ortiz were fired without cause and replaced with younger, less qualified employees; prior to their termination Canavan told his management staff that he wanted to hire high energy and young and attractive staff, and subsequently hired a disproportionate number of younger staff members to replace older employees, who were disciplined and terminated far more often than the younger ones; defendants condoned and encouraged staff to discriminate against the older workers, taunting them and making age-related jokes; and,
management frequently bad mouth[ed] its older employees, referring to them as stupid, and indicated the hotel needed to hire younger staff.

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