In Doe v. Benjamin Zaremski M.D., P.C. et al, 21 Civ. 3187 (ER), 2022 WL 2966041 (S.D.N.Y. July 27, 2022), the court held that the applicable standard for making our a claim under the New York City Human Rights Law’s “public accommodation discrimination” provision, N.Y.C. Admin. Code § 8-107(4), is that the aggrieved person was “treated less well” than others because of a protected characteristic – i.e., the same standard applicable to employment discrimination claims.
In sum, the plaintiff asserts that the defendant doctor asked her inappropriate questions, and that he inappropriately touched her during a medical examination. In the ensuing lawsuit (this case), she asserts a violation of NYCHRL § 8-107(4)(a).
In pertinent part, that statute says that it is an unlawful discriminatory practice
for any person who is the owner, proprietor, manager, agent or employee of any place or provider of public accommodation to refuse, withhold from or deny to such person the full and equal enjoyment, on equal terms and conditions, of any of the accommodations, services, facilities or privileges of the place or provider of public accommodation because of any person’s actual or perceived gender directly or indirectly. NYCHRL §§ 8-107(4)–(4) (1)(a). (Cleaned up.)
In addition, the legislature has made clear that these provisions are to be construed broadly. See NYCHRL § 8-130(c).
En route to concluding that the “less well” standard applies to plaintiff’s claim, the court explained:
Doe argues that she was treated “less well” as Dr. Zaremski’s patient at his office and therefore the three counts of discrimination under the NYCHRL are appropriate. Doe further argues that the less well standard applies to her causes of action. Specifically, Doe argues that in 2009, the New York Appellate Division decided Williams v. New York City Housing Auth., 61 A.D.3d 62 (N.Y. App. Div. 2009),2 and in 2016, the New York City legislature amended NYCHRL § 8-130 to state that Williams correctly developed a legal doctrine that reflects the broad and remedial purposes of the entire title. From this, Doe concludes that all causes of action under the NYCHRL should be construed under the less well standard, not just employment discrimination cases under § 8-107(1).
The Defendants argue that Doe conflates the law between employment discrimination and public accommodations because the less well standard is intended for employment discrimination cases, not public accommodation ones. The Defendants contend that cases binding on the Court establish that the less well standard applies only to claims of employment discrimination.
NYCHRL § 8-130(a) provides, in relevant part, that “[t]he provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York state civil and human rights laws, including those laws with provisions worded comparably to provisions of this title, have been so construed.” NYCHRL § 8-130(c) provides, in relevant part, that “[c]ases that have correctly understood and analyzed the liberal construction requirement of subdivision (a) of this section and that have developed legal doctrines accordingly that reflect the broad and remedial purposes of this title include … Williams v. New York City Housing Authority, 61 A.D.3d 62 (N.Y. App. Div 2009)” (emphasis added).
The New York City legislature’s 2016 amendment of NYCHRL § 8-130 adopts the reasoning in Williams that the broad and remedial purposes of the entire title apply to more than employment discrimination under § 8-107(1). Accordingly, the statutory language suggests that the legislature did not intend to limit the less well standard to employment discrimination cases. Following the amendment, courts have applied the less well standard in circumstances outside of employment discrimination.
The court then proceeded to cite cases where the court applied the “treated less well” standard outside the employment context, and noted that the cases cited by defendants were “merely examples of employment discrimination cases under the NYCHRL in which the court applied the less well standard” that “do not imply that the less well standard applies only to employment discrimination cases.”