Public Accommodation Discrimination Claims Sufficiently Alleged Against Medical Office

In Pinkcombe v. Randev, No. 155804/2022, 2023 WL 4680147 (N.Y. Sup Ct, New York County July 20, 2023), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claims that he was subjected to discrimination (based on his gender and race) in a place of public accommodation.

From the decision:

In relevant part, Administrative Code 8-107(4)(a) states that it shall be an unlawful discriminatory practice for any person who is the owner, franchisor, franchisee, lessor, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation: (1) because of any person’s actual or perceived race…gender…directly or indirectly: (a) to refuse, withhold from or deny to such person the full and equal enjoyment, on equal terms and conditions, of any of the accommodations, advantages, services, facilities or privileges of the place or provider of a public accommodation. For NYCHRL liability, therefore, the primary issue for a trier of fact in harassment cases, as in other terms-and-conditions cases, is whether the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of her gender.

In Vasquez v Manhattan Physician Group (2018 N.Y. Slip Op. 30157[U] [Sup Ct, New York County 2018]), the court sought to determine whether the Williams standard applicable to employment discrimination also applied to places of public accommodation. In Vasquez, the plaintiff commenced an action against a geologist pursuant to the NYCHRL for alleged improper touching unrelated to her medical treatment. The court first determined that the medical provider’s office was a public accommodation pursuant to the NYCHRL. The court further held that the NYCHRL prohibits sexual harassment in the public accommodation context, reasoning that the language of Administrative Code § 8-107 [4] [1] [a], which precludes gender discrimination in the workplace, is broadly worded, like the language of Administrative Code § 8-107 [1] [a], which precludes gender discrimination in the workplace. The court ultimately denied the defendants’ motion for summary dismissal of the plaintiff’s claim for gender discrimination under the NYCHRL.

Here, like in Vasquez, a medical office treating patients is a public accommodation under the NYCHRL. Plaintiff further alleges facts demonstrating that he was treated less well than other patients because of his gender by alleging that: 1) Randev inappropriately rubbed plaintiff’s back “sexually” and stated that she “loved” the tattoo she saw on his back; 2) Randev was rubbing plaintiff’s hands when he awoke in the recovery room after surgery; and 3) Randev told plaintiff that their signs were “compatible,” disclosed that she was attracted to plaintiff, and stated “I love you” to plaintiff. Plaintiff also alleges facts that he was treated less well on the basis of his race by alleging that, in the context of plaintiff’s actions directed toward plaintiff, that Randev “[l]ove[d] to get with Black men” and “If I brought home a tatted out thug with diamonds…I mean, I’d love how my family would react,” and that they should get together outside of the work setting.

[Cleaned up.]

However, not all of plaintiff’s allegations were sufficient to make out a claim. For example, plaintiff’s claims that defendant alleged “inappropriate” comments admiring plaintiff’s tattoos and jewelry and tattoos, and allegedly acting “flirtatiously” towards him, were insufficient to state a claim.

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