In Canosa v. Harvey Weinstein et al, 2019 WL 498865 (S.D.N.Y. 2019), the court, inter alia, clarified that sexual harassment is a form of “discrimination” under federal law (Title VII of the Civil Rights Act of 1964) and the New York State and City Human Rights Laws, and does not constitute an independent common-law tort.
Judge Engelmayer wrote:
The Court begins by examining whether the AC’s claims to this effect that are not anchored in the Human Rights Laws but that instead appear to be based on common law may survive. “It is not clear that sexual harassment … exists as an independent common law tort under New York law.” S.R. ex rel. M.R. v. Turnbull, No. 12 Civ. 1052 (MEA), 2013 WL 1285411, at *2 n.2 (S.D.N.Y Mar. 28, 2013). Canosa has not cited any case law supporting such a common law cause of action, and the Court has not found any. On the contrary, theories of sexual harassment, whether based on a quid pro quo or a hostile work environment theory, are commonly brought either under federal law under Title VII (not pled here) or the Human Rights Laws. See, e.g., Hill v. Children’s Vill., 196 F. Supp. 2d 389, 393 (S.D.N.Y. 2002) (“Plaintiff proceeds on both quid pro quo and hostile work environment theories of sexual harassment”).
Moreover, the six above claims are duplicative. Claims 8, 9, 10, and 19 plead theories of sex discrimination, including by means (claim 10) of quid pro quo harassment, and claims 11 and 20 plead a hostile work environment. Neither the NYSHRL nor the NYCHRL make statutory distinctions between these theories. Instead, the Human Rights Laws merely outlaw “[u]nlawful discriminatory practices” on the basis of, inter alia, sex. N.Y. Exec. L. § 296; N.Y.C. Code § 8-107. Sex discrimination includes sexual harassment through quid pro quo and hostile work environment theories. See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (“Without question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor discriminates on the basis of sex.” (quotation marks omitted)).
Accordingly, the Court treats the AC as bringing one claim (claim 8) under the NYSHRL for discrimination, embracing Canosa’s multiple theories of harassment, and another (claim 9) under the NYCHRL, again, embracing multiple theories of harassment. These claims are, as noted, brought against all defendants. The Court dismisses claims 10, 11, 18, and 19, as either based on non-existent common-law theories of liability or as duplicative, against all defendants.