“Gender Identity” Discrimination Claim Survives Dismissal Under the NYS and NYC Human Rights Laws

In Smith v. Global Contact Holding Co., No. 156087/2019, 2020 WL 3485542 (N.Y. Sup Ct, New York County June 26, 2020), the court, inter alia, held that plaintiff sufficiently alleged discrimination based on his “gender identify” under the New York State and City Human Rights Laws.

From the decision:

Here, plaintiff has alleged that he is part of a protected class due to his gender identity and that he was qualified for his position, having successfully completed the required training. Plaintiff also sufficiently pleaded that he was treated adversely in that defendants refused to grant him a medical leave sufficient for his recovery, that he was subject to unwarranted discipline, and terminated twice under circumstances giving rise to an inference of discrimination. In this regard, the complaint alleges that despite having been informed that plaintiff identifies as a male and would like to be referred to using the name “Devon” and male pronouns, defendants persisted in repeatedly using a female name and pronouns when referring to him, which did not correspond to his gender identity. Additionally, plaintiff was subject to remarks such as “I’m not going to call you Devon or he, everyone can see you are a woman” and “you’ve got some big things up there, you’re no guy.” He was also referred to as “my girl” and “fat bitch.” These allegations, viewed in the light most favorable to plaintiff, are indicative of discriminatory animus.

The court also rejected defendants’ reliance on the “stray remarks” doctrine, explaining:

Here, the complaint alleges that at all relevant times, the individual defendants possessed management and supervisory authority over plaintiff, including the authority to cause his termination and to affect the terms and conditions of his employment. Considering (1) that the remarks regarding plaintiff’s gender identity were made by decisionmakers and supervisors after plaintiff made it clear that he is a transgender man and uses a male name and pronouns, (2) the close temporal proximity of the remarks to the employment decisions at issue, and (3) that a reasonable juror could view the remarks as discriminatory, plaintiff’s allegations demonstrate a connection between defendants’ comments and the employment decisions at issue sufficient to give rise to an inference of discrimination (see also NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression: Local Law No. 3 [2002] Administrative Code of City of NY § 8-102 [23] [2016] [available at https://wwwl.nyc.gov/assets/cchr/downloads/pdf/publications/GenderID_InterpretiveGuide_2015.pdf] [“refusal to use a transgender employee’s preferred name, pronoun, or title may constitute unlawful gender-based harassment”]; [“The NYCHRL requires employers … to use an individual’s preferred name, pronoun and title (e.g., Ms./Mrs.) regardless of the individual’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification”]; [“All people, including employees . . . have the right to use their preferred name regardless of whether they have identification in that name or have obtained a court-ordered name change, except in very limited circumstances where certain federal, state, or local laws require otherwise (e.g., for purposes of employment eligibility verification with the federal government)”]).

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