In Shiber v. Centerview Partners LLC, 21 Civ. 3649, 2022 WL 1173433 (S.D.N.Y. April 20, 2022), the court dismissed plaintiff’s disability discrimination claims asserted under the New York State and New York City Human Rights Laws.
This decision is instructive as to how courts apply those statutes’ geographic (“impact”) test in the increasingly-prevalent factual context of “remote work” arrangements, which have proliferated in and by virtue of the COVID-19 era.
From the decision:
Because Shiber at all relevant times worked from her home in New Jersey and because she cannot demonstrate an impact in New York City or New York State, her NYCHRL and NYSHRL claims must be dismissed.
Shiber argues she meets the impact requirement because she expected that at some point she would work in New York City. Doc. 28 at 6–7. Shiber explains she was hired to work in New York City and, had she not been fired, she eventually would have been required to work there, once the offices reopened and Centerview employees no longer had to work remotely. Id. Here, Shiber analogizes to two failure-to-hire cases, Anderson v. HotelsAB, LLC and Chau v. Donovan, and argues that she, like the plaintiffs in those cases, was deprived of the opportunity to work in New York. But, as Centerview points out, Anderson and Chau are inapposite.
In both cases, the plaintiffs asserted discriminatory failure-to-hire claims, alleging they felt an impact in New York when they were denied employment—on discriminatory grounds—in New York. See Anderson v. HotelsAB, LLC, 2015 WL 5008771, at *3, 10–11 (S.D.N.Y. Aug. 24, 2015) (“Plaintiff’s Complaint sufficiently alleges that Defendants’ conduct had an impact with respect to her prospective employment responsibilities in New York City” because “Plaintiff [ ] alleged that she would have worked in New York for a period of seven months and that the requirements of the controller position would have required her to do so each year”); see also Chau v. Donovan, 357 F. Supp. 3d 276, 283 (S.D.N.Y. 2019) (“Although Chau never worked in New York City for Granger or Donovan, the job for which she alleges she was not hired in violation of the NYCHRL and NYSHRL would have offered her employment within New York City.”).
But, here, Shiber has not alleged—and cannot allege—a discriminatory failure-to-hire claim. Instead, Shiber alleges that, had she not been fired, she at some point might have been able to work in New York City. This is not enough. As another court in this district made plain, pleading impact in New York City by “unspecified future career prospects would … represent a[n] … impermissible broadening of the scope of [the NYCHRL and NYSHRL].” Kraiem v. JonesTrading Inst. Servs. LLC., 492 F. Supp. 3d 184, 199 (S.D.N.Y. 2020). In other words, if “impact can be shown by a mere hope to work in New York down the line, the flood gates would be open.” Id. Here, Shiber points to no facts showing—with any specificity—that she one day would have been able to work in Centerview’s New York City offices or that she relied on some promise of eventual in-person work. Shiber’s allegations that Centerview had plans to re-open its offices—at some point—are insufficient to prove that she would have been required to work in person and, in any event, do not show that Shiber suffered an impact in New York City or New York State.
The court, therefore, granted defendants’ motion to dismiss plaintiff’s claims under the state and city laws for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).