Off-Duty Employee’s NYCHRL “Customer Harassment” Claim Dismissed

In Alexander v. Equinox Holdings LLC, No. 160323/2018, 2019 WL 4643772, 2019 N.Y. Slip Op. 32830(U) (N.Y. Sup Ct, New York County Sep. 18, 2019), the court dismissed plaintiff’s discrimination/harassment claim asserted under the NYC Human Rights Law, NYC. Admin. Code § 8-101 et seq. (NYCHRL).

Here, the events giving rise to plaintiff’s sex-based hostile work environment claim occurred while he was in the steam room at an Equinox facility and – critically – while he (though an Equinox employee) was off-duty at the time. The court holds that plaintiff was not a “person aggrieved” within the meaning of NYCHRL § 8-502(h)(1).

From the decision:

Alexander does not allege he was subjected to a violation of a right under the NYCHRL while he was acting, or as a result of him having acted, within the scope of his employment relationship with Equinox. Rather, Alexander alleges a violation of a right by a non-employee of defendant while plaintiff was admittedly acting, or as a result of plaintiff having acted, outside the scope of his employment relationship. Specifically, plaintiff alleges he was exposed to sexual conduct by a non-employee customer while Alexander was off-duty and present at that time and place solely in his capacity as another non-employee customer. In other words, plaintiff was a customer who was allegedly sexually harassed by another customer, which is not a cognizable claim for employment discrimination under the NYCHRL.

Notably, the cases upon which Alexander relies in opposition to the instant motion are distinguishable from the case at bar. Each of the cases cited by plaintiff involve an “on-duty” employee who was acting in the scope of his or her employment and subjected to the allegedly offensive conduct by a customer as a result of that employment. See Swiderski v. Urban Outfitters, Inc., 2017 WL 6502221, at *1-2 (S.D.N.Y. Dec. 18, 2017) (explaining that the plaintiff, who was a sales associate at an Urban Outfitters store, was subjected to customer harassment while she was assisting a customer); Creacy v. BCBG Max Azria Grp., LLC, 2017 WL 1216580, at *1-3 (S.D.N.Y. Mar. 31, 2017) (explaining that the plaintiff, who was in charge of the BCBG shop **6 within a Lord & Taylor department store, was subjected to customer harassment while she was assisting customers). None of these situations exist in the present case.

Contrary to the above cases, Alexander is not alleging he was subjected to sexually offensive conduct by a customer while plaintiff was acting in his capacity as an employee of Equinox. Rather, it is undisputed that plaintiff was present in the steam room in his capacity as a fellow fitness club member, which holds true even if his membership to the club was a benefit extended to him by virtue of his employment.

Under these circumstances, Alexander was not an “aggrieved person” as defined under the NYCHRL, nor was he subjected to an “unlawful discriminatory practice” or an “act of discriminatory harassment” as an employee of this employer as required by the NYCHRL to sustain these causes of action.

Based on the foregoing, the court concluded that plaintiff’s causes of action for sex-based discrimination and harassment must be dismissed.

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