Failure to Hire Claim Sufficiently Alleged Under the NYCHRL Against Google

In Bernhard v. Google, Inc., No. 155597/2020, 2023 WL 2989640 (N.Y. Sup Ct, New York County Apr. 14, 2023), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s failure-to-hire claim asserted under the New York City Human Rights Law.

This decision is instructive as to how courts assess such claims under the NYCHRL.

From the decision:

Although ‘courts have yet to establish a test for analyzing failure to [hire] claims under the NYCHRL,” judges look to the NYSHRL test as a guide ‘bearing in mind the more liberal standards of the NYCHRL” (Tulino v City of N.Y., 2016 WL 2967847, * 5 [SD NY May 19, 2016, 15-CV-7106 [JMF], quoting Campbell v Cellco Partnership, 860 F Supp 2d 284, 297 [SD NY 2012]). In order to sustain a failure to hire claim on a motion to dismiss, a plaintiff must allege specific positions to which she applied and was rejected (Brown v Coach Stores, Inc., 163 F3d 706, 710 [2d Cir 1998]). To qualify as an application, a “plaintiff need not show that he/she applied for a specific position” (Tulino v City of N.Y., 2016 WL 2967847 at * 5), however, “a plaintiff’s actions must be more than a general request for employment” (Wang v Phoenix Satellite Television US, Inc., 976 F Supp 2d 527, 537 [SD NY 2013]). However, a plaintiff may be excused from a specific application requirement, when he or she shows “ ‘that (1) the vacancy at issue was not posted, and (2) the employee either had (a) no knowledge of the vacancy before it was filled or (b) attempted to apply for it through informal procedures endorsed by the employer’ ” (id. at 537-538, quoting Petrosino v Bell Atlantic, 385 F3d 210, 227 [2d Cir 2004];1 see also e.g., Pelepelin v City of New York, 189 AD3d 450, 452 [1st Dept 2020] [holding that it was not necessary to plead that the plaintiff applied for a specific position, since it was “alleged that promotions were typically made unannounced and unsolicited”]).

Here, taking the allegations as true and drawing all reasonable inferences in plaintiff’s favor, the complaint sets forth sufficient facts to show that plaintiff attempted to apply for a position with Google through informal procedures. She met with Katz with the intention of obtaining a job either as an independent contractor or as an employee. Katz continued the dialogue and suggested specific positions for which she may be hired, i.e., the Tokyo Olympics project, Coachella and potentially others (complaint, ¶¶ 31-32, 42-48, 80-82, 92-94). Plaintiff sent a nondisclosure agreement in attempts to secure the job (id., ¶ 73) (see Chau v Donovan, 357 F Supp 3d at 293-294; Wang v Phoenix Satellite Television US, Inc., 976 F Supp 2d at 537).

Defendant Google argues, however, that plaintiff fails to state a claim as against it because plaintiff does not allege that any of the purported positions she sought remained open and were filled with individuals outside her protected class. A NYCHRL failure to hire claim is not viable where the plaintiff fails to allege that the position was filled with someone outside her protected class or was ever created (Okocha v City of New York, 122 AD3d 550 [1st Dept 2014]; Bernstein v The MONY Group, Inc., 228 F Supp 2d 415, 419 [SD NY 2002]). Plaintiff counters however, that she was not applying for a standard, open vacancy with a formal application process, but rather that the position was never formally posted. In Wang v Phoenix Satellite Television US, Inc. (976 F Supp 2d at 538), for example, a motion to dismiss was denied where although the plaintiff attempted to apply for an unposted position, plaintiff expressed her interest in a particular class of position, was led to believe she could obtain employment, was invited to discuss job opportunities and was not informed that there were no such opportunities available.

Finding that the facts here are analogous to those in the Wang case, the court declined to grant this aspect of defendant’s motion.

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