Student-on-Teacher Sexual Orientation Hostile Work Environment Claim Survives Dismissal Under NYC Law

In Small v. New York City Department of Education et al, 1:21-cv-1527-GHW, 2023 WL 112546 (S.D.N.Y. Jan. 5, 2023), the court, inter alia, held that plaintiff – a teacher – sufficiently alleged a sexual orientation-based hostile work environment claim under the New York City Human Rights Law (but not under Title VII of the Civil Rights Act of 1964 or the New York State Human Rights Law).

After dismissing plaintiff’s federal and state claims, the court turned to plaintiff’s city claim:

Small, however, has stated a plausible hostile workplace environment claim under the NYCHRL. That is because the NYCHRL, unlike Title VII and the NYSHRL, “does not require … conduct severe or pervasive enough to alter the terms” of one’s employment in order to plead a hostile work environment claim. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 114 (2d Cir. 2013); see Williams v. N.Y.C. Hous. Auth., 872 N.Y.S. 2d 27, 37–40 (N.Y. App. Div. 2009) (rejecting the “severe and pervasive” standard as inconsistent with the NYCHRL’s “broad remedial purpose”). Instead, a hostile work environment claim under the NYCHRL only need plausibly allege unequal treatment based on a protected characteristic.

Mapped onto the requirements for student-on-teacher harassment, this means that Small can state a NYCHRL hostile work environment claim by plausibly pleading that his employer knew of any alleged harassment based Small’s perceived sexual orientation—even if that harassment was not severe and pervasive—and failed to take appropriate remedial action. See Berger-Rothberg, 803 F. Supp. 2d at 164–65. His complaint meets that standard. As described above, A.B.’s alleged comments were plainly targeted at Small’s perceived sexual orientation. See Addendum ¶¶ 19, 37. And Small alleges that Paul both knew of the comments and failed to take appropriate remedial action. See id. ¶¶ 10, 19, 28 (alleging that, after Small complained to Paul about A.B.’s behavior, Paul blamed Small for one incident and “did nothing to correct” another). Of course, Defendants are free to present evidence after the motion-to-dismiss stage to support arguments that Paul’s remedial actions were appropriate. But “[t]he question of whether school officials took appropriate remedial action is a question of fact, not law”; as such, it cannot preclude Small’s claim now.

[Cleaned up.]

The court concluded that since plaintiff did not plausibly allege that he was subject to “severe or pervasive” harassment based on a protected characteristic, his federal and state claims must be dismissed, but his city law claim – given that the city law does not have a “severe or pervasive” requirement – survives.

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