Sexual Harassment Claims Survive, In Part, Against WeWork

In Anaya v Wework Companies, Inc. et al, No. 159414/2018, 2019 WL 1744253 (N.Y. Sup Ct, New York County Apr. 18, 2019), the court, inter alia, held that plaintiff sufficiently alleged sexual harassment under the New York City Human Rights Law, but not the New York State Human Rights Law.

This decision aply illustrates the differences between how discrimination/harassment claims are evaluated under state law as opposed to under the comparatively broader city law.

The court summarized plaintiff’s allegations as follows:

[P]laintiff, who was formerly employed by WeWork, alleges in her first amended complaint that she was sexually harassed on two occasions in August 2017 and January 2018 by coworkers at company events, that WeWork had knowledge that inappropriate sexual conduct at these events was a recurring problem, and that she complained to its human resources department. She further alleges that, in response to her complaints, the human resources department did not adequately address the conduct of her alleged assailants in particular, and did nothing at all to address the general problem of inappropriate sexual behavior at company events. The plaintiff alleges that she further complained in March 2018 about WeWork’s inadequate responses to the problem of sexual harassment, including her fear that the male coworkers who had previously harassed her would be permitted to attend WeWork’s “Summer Camp” event only a few months away. In addition, she asserts that she participated in several meetings with female coworkers concerning their belief that women were not paid equally to men who performed the same or similar functions, and that she complained to management about the disparity in or about April 2018. The plaintiff alleges that, in June 2018, in retaliation for her ongoing complaints, her employer undertook surveillance of her. She asserts that WeWork surreptitiously photographed her having a glass of wine with a coworker at 4:30 p.m. in order to accuse her of drinking alcohol during work hours, even though WeWork touts its provision of free beer to its employees all day long and hosts a “mandatory” happy hour on Fridays at 4 p.m. The plaintiff asserts that, despite receiving only positive performance reviews from the time that she began working for WeWork in 2014, McKelvey terminated her employment at an August 3, 2018, meeting that she herself had requested. *2 The plaintiff further alleges that, after she commenced this action, McKelvey emailed a message to all of WeWork’s almost 6,000 employees in which he suggested that the plaintiff’s employment was terminated because she was a poor performer.

The court explained that the NYC Human Rights Law’s relatively broad standard for discrimination and harassment cases:

In construing claims of sex harassment prosecuted under the NYC HRL, the Appellate Division, First Department, thus rejected the contention that a claimant must establish that any such harassment was “severe or pervasive,” as required under federal and state law. Rather, the Court concluded that “liability is normally determined simply by the existence of unwanted gender-based conduct” constituting “differential treatment,” and that “questions of ‘severity’ and ‘pervasiveness’ are applicable to consideration of the scope of permissible damages, but not to the question of underlying liability” (Williams v New York City Hous. Auth., 61 AD3d 62, 76 [1st Dept 2009]). “For [Human Rights Law] liability, therefore, the primary issue for a trier of fact in harassment cases, as in other terms-and-conditions cases, is whether the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of her gender”.

Applying the law to the facts, plaintiff’s allegations were sufficient:

Here, the plaintiff alleges in her amended complaint that WeWorks knew about sexually inappropriate behavior by its employees at corporate events, that it failed to take appropriate corrective action when she lodged complaints against two coworkers in August 2017 and January 2018, and that those coworkers engaged in unwanted sexual touching and grabbing. These allegations are sufficient to state a cause of action against WeWorks for sexual harassment (first cause of action) and gender discrimination (third cause of action) under the NYC HRL, and there is significant dispute regarding both those allegations and the defendants’ contention that her employment was terminated for poor performance[.]

However, the court reached the opposite conclusion as to plaintiff’s allegations under state law, which (unlike the city law) employs a “severe or pervasive” standard for actionable harassment. It explained, inter alia, that “[t]he two incidents of sexual harassment described by the plaintiff certainly do not describe a ‘pervasive’ course of discriminatory intimidation against her, and fall short of constituting the ‘severe’ type of conduct required to sustain a cause of action to recover for gender discrimination under State law[.]”

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