Gender & Religious Discrimination Claims Sufficiently Alleged on “Disparate Discipline” Theory

In Lemanski v. SFM Realty Corp., No. 150261/2021, 2021 WL 4973959 (N.Y. Sup Ct, New York County Oct. 26, 2021), the court, inter alia, held that plaintiff stated claims for gender- and religion-based discrimination (but not age discrimination) under the New York City Human Rights Law.

From the decision:

The sole element of plaintiff’s prima facie claim for discrimination under the NYCHRL challenged by defendants is that her discharge occurred under circumstances giving rise to an inference of discrimination. To satisfy this element, a plaintiff must plead facts sufficient to support such an inference beyond conclusory allegations of bias. (Wolfe-Santos v NYS Gaming Commission, 188 AD3d 622 [1st Dept 2020]; Askin v Dept. of Educ. Of City of N.Y., 110 AD3d 621, 622 [1st Dept 2013]). Such a cause of action may be supported by allegations of discriminatory comments by an employer (O’Rourke v Natl. Foreign Trade Council, 176 AD3d 517 [1st Dept 2019]; Whitfield-Ortiz v Dept. of Educ. Of City of N.Y., 116 AD3d 580, 581 [1st Dept 2014]) or by allegations of the disparate treatment of similarly-situated employers (Brown v City of New York, 188 AD3d 518, 519 [1st Dept 2020]; Whitfield-Ortiz, 116 AD3d at 581).

Here, while plaintiff does not allege that Smith or any SFM employee commented on her gender, age, or religion, she alleges facts indicating that she was disparately treated based on religion and gender by claiming that similarly-situated Jewish male employees had engaged in conduct … without suffering adverse employment consequences. That plaintiff was replaced by someone 20 years younger, however, does not constitute disparate treatment absent additional facts. (See Green v Citibank, N.A., 299 AD2d 182 [1st Dept 2002] [replacement by a younger employee not enough to support claim of age discrimination absent other facts]; Demay v Miller & Wrubel P.C., 262 AD2d 184, 185 [1st Dept 1999] [allegation that plaintiff was replaced by younger employee insufficient to support age discrimination claim absent age-related comments or evidence that younger employee was desired]).

The court concluded that “[i]n light of the liberal pleading standards of the NYCHRL, plaintiff’s assertions of disparate treatment based on gender and religion are sufficient to give rise to an interference of discrimination.”

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