In Ibrahim v. Fidelity Brokerage Services LLC, 19-CV-3821, 2020 WL 107104 (S.D.N.Y. Jan. 9, 2020), the court, inter alia, held that plaintiff sufficiently alleged sexual harassment under the New York City Human Rights Law, codified at N.Y.C. Admin. Code § 8–107(1)(a) (NYCHRL).
The court’s decision nicely summarizes the present state of the law regarding how claims asserted under the NYCHRL should be evaluated at the pleading stage (internal citations and quotation marks omitted; formatting altered):
To plead a sex discrimination claim under the NYCHRL, Plaintiff need only allege facts showing that she was treated “less well” because of her sex. … This provision is to be broadly construed in order to effectuate the uniquely “broad and remedial purposes of the City’s Human Rights Law.” … As a function of that expansive construction, “the NYCHRL does not require [a plaintiff to prove] either materially adverse employment actions or severe and pervasive conduct.” The NYCHRL does not distinguish between claims of “discrimination” and “harassment” or hostile work environment, which is a term of art borrowed from the more restrictive Title VII jurisprudence. … In other words, a plaintiff states a claim for a violation of the NYCHRL by alleging facts indicating unequal treatment for a discriminatory purpose by an employer, regardless of whether the plaintiff pleads a “hostile work environment,” harassment, or other category of discrimination.
Here, the plaintiff appeared to overstate her burden under the NYCHRL by alleging that, e.g., defendant “intentionally created a hostile work environment” and subjected her to an “adverse employment action” by “constructively discharging” her. Under the NYCHRL, the plaintiff was not required to allege that she was subjected to “materially adverse employment actions”. Therefore, plaintiff’s two claims – “hostile work environment” and “discrimination” – were “better construed as one claim of violation of the NYCHRL, with an allegation of constructive discharge” such that “if proven, the constructive discharge would be relevant to calculating damages, if liability is established.”
Next, in reaching its conclusion that plaintiff adequately pleaded a violation of the NYCHRL, the court explained:
Accepting the truth of Plaintiff’s allegations, her supervisors subjected her to unwanted physical and sexual contact, multiple unwelcome romantic advances, repeated commentary about her appearance and attractiveness, and exclusionary stereotypes about the traditional role of a woman in the workplace and home. Even absent the specific identification of a male comparator, those factual allegations adequately support a plausible inference that Plaintiff’s supervisors would not have treated a male the same way and that Plaintiff was treated “less well” because of her gender.
It next described the requirement that plaintiff allege a connection between the protected category (here, gender) on the one hand, and the allegedly discriminatory conduct, on the other:
Because the NYCHRL is not a “general civility code,” Plaintiff must allege a nexus between her sex and the discriminatory conduct; in other words, she must show that the mistreatment was motivated by discriminatory animus. … A discriminatory motive can be shown either by pleading direct evidence of discrimination, including “comment[s] indicating prejudice on account of a protected characteristic,” or by pleading facts showing that male comparators were treated better than Plaintiff was.
Direct evidence of a discriminatory motive includes comments referring to employees by slurs or demeaning stereotypes that “make clear that the employee in question is not truly welcome in the workplace.” … Even a single discriminatory comment can be sufficient to evince a discriminatory motive. … Nevertheless, comments that a reasonable person would view as “petty slights and trivial inconveniences” do not reveal a discriminatory motive.
The court continued to explain its conclusion that plaintiff met her pleading burden:
In this case, Plaintiff has adequately alleged that Wiesen and Young treated Plaintiff “less well” than they treated her male colleagues by repeatedly initiating unwanted sexual advances and romantic contacts. There is no serious question that such behavior constitutes treating an employee “less well” based on the employee’s sex. …
Plaintiff has alleged that Wiesen also made multiple offensive statements with sexual connotations, such as commenting on Plaintiff’s attractiveness and telling Plaintiff that she would be “staying late with [him]” and that “his genitals worked.” Similar to physical acts of harassment, unwanted comments about an employee’s attractiveness and appearance have an exclusionary effect in the workplace and constitute unequal treatment. … Such behavior objectifies female employees, suggests that women should seek male approval, undermines their standing as colleagues, and discourages women from remaining on the job. … In short, the sexual nature of Wiesen’s comments supports a plausible inference that a male employee would not have been treated the same way.
Finally, Wiesen repeatedly expressed exclusionary stereotypes about women in the workplace and then acted on that prejudice. When he discovered that Plaintiff was planning on having a child, Wiesen allegedly assumed that Plaintiff would prioritize her family over her career, a pernicious belief that women who are parents are less committed employees than men who are parents. iesen then actualized his discriminatory belief that Plaintiff was likely to stop working after starting a family by taking steps to minimize Plaintiff’s role and pave the way for her exit from Fidelity—reducing her work assignments, giving her multiple written warnings, placing her on a performance review, and issuing a “corrective action.” Although Fidelity argues that Plaintiff failed to allege any discriminatory motivation or intent, one can reasonably infer that Wiesen would not have predicted career suicide for expectant fathers or male breadwinners.