In Lum v. Consolidated Edison Co. of N.Y., Inc., 2022 NY Slip Op 05594 (App. Div. 1st Dept. Oct. 6, 2022), the court modified a lower court order to reinstate plaintiff’s claims for national origin discrimination under the New York State and City Human Rights Laws, and for sexual harassment under the New York City Human Rights Law.
From the decision:
Plaintiff’s allegations, that several times a week over a period of at least two years, plaintiff’s coworker spoke to him in a mock Chinese accent, told plaintiff to “open your eyes,” and tormented him about his mandatory drug testing in a sexually and racially charged manner, are sufficient to state a hostile work environment claim based on national origin discrimination under both the State and City HRLs.
As to plaintiff’s sexual harassment claim, the allegations that his coworker regularly made statements about plaintiff’s penis size when plaintiff took bathroom breaks or reported for drug testing fall within the broad range of conduct that falls between severe and pervasive on the one hand and a petty slight or trivial inconvenience on the other, such that they are sufficient under the City HRL but not under the State HRL. The continuing violation doctrine does not apply to the isolated statements made outside the limitations period because they do not form part of a single continuing pattern of unlawful conduct extending into the limitations period, but rather discrete events, involving different actors, occurring months to years apart.
[Cleaned up.]
The court did, however, affirm the dismissal of plaintiff’s retaliation claim, noting his “vague allegation that he complained about discriminatory conduct on several occasions” which “lacks any factual context that might support an inference of a causal connection to his January 2020 termination, particularly in light of the allegations specifically tying plaintiff’s termination to the positive results of his November 2019 drug test.”