Sex-Based Discrimination / Pay Disparity Claims Survive in Part

In Hatzimihalis v. SMBC Nikko Securities America, Inc. et al, 20 Civ. 8037 (JPC), 2023 WL 3764823 (S.D.N.Y. June 1, 2023), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s sex-based pay discrimination claims under the New York City Human Rights Law and the post-amendment New York State Human Rights Law claims.

This decision is instructive as to how these claims are assessed under the various statutes that apply to claims of unlawful sex-based pay discrimination claims.

From the decision:

As mentioned, the evidence Plaintiff relies on in this case consists primarily of evidence showing that a pay disparity existed between her and her male comparators and evidence showing that Defendants’ proffered explanation for that disparity is pretextual. As discussed, this evidence, the Second Circuit has held, does not suffice for a Title VII claim to survive summary judgment. See Belfi, 191 F.3d at 140; supra III.B.1. But as Bennett explained, under the NYCHRL, “[o]nce there is some evidence that at least one of the reasons proffered by defendant is false, misleading or incomplete, a host of determinations properly made only by a jury come into play, such as whether a false explanation constitutes evidence of consciousness of guilt, an attempt to coverup the alleged discriminatory conduct, or an improper discriminatory motive co-existing with other legitimate reasons.” Bennett, 936 N.Y.S.2d at 123. Only “in the most extreme and unusual circumstances” should a court remove such questions from the jury.

This rule controls the outcome of Defendants’ motion for summary judgment with respect to Plaintiff’s NYCHRL Sex Discrimination Claim and post-amendment NYSHRL Sex Discrimination Claim. Plaintiff has introduced evidence to show that Defendants’ proffered rationale for the pay disparity—namely, her inferior job performance compared to Nieves and Asmundson—is pretextual. And Bennett instructs that in almost all circumstances it is the jury’s role, not the court’s, to determine whether an employer’s pretextual explanation shows that discrimination played some role in motivating its treatment of employees.

Accordingly, the court concluded that “a genuine question of fact exists both as to whether performance determined Plaintiff’s compensation and, if not, as to whether Defendants’ pretextual explanation indicates that Plaintiff was paid less because of her sex” warranted denial of defendants’ motion for summary judgment as to plaintiff’s sex discrimination claims under the NYCHRL and the post-amendment NYSHRL.

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