Applying Recent Law, Court Denies Motion to Compel Arbitration in Sexual Harassment Lawsuit Against Paul Taylor Dance Foundation

In Barbara Delo v. Paul Taylor Dance Foundation, No. 22-cv-9416 (RA), 2023 WL 4883337 (S.D.N.Y. Aug. 1, 2023), the court denied the defendant’s motion to compel arbitration under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.

As part of its analysis, the court held that plaintiff plausibly alleged sexual harassment under the New York City Human Rights Law (NYCHRL):

The Amended Complaint meets the lenient bar of the NYCHRL. To be sure, a number of the allegations in the Amended Complaint are indeed conclusory and cannot be given any weight in a plausibility analysis. See, e.g., Am. Compl. ¶ 88 (alleging that the new “Workplace Policy” was “clearly aimed at [Delo] and Ms. Bugge and calculated to make their work lives unpleasant”); ¶ 120 (alleging that Tomlinson treated Marine in a “brusque manner because she was a woman and because she had complained about discrimination”); ¶ 127 (alleging “[i]t is obvious Tomlinson had it in mind to fire Ms. Delo for some time due to his simmering discriminatory and retaliatory animus against her”); see also Iqbal, 556 U.S. at 663 (“[T]he tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.”). Nonetheless, the remaining factual allegations, taken as true, plausibly establish that Delo was subject to “unwanted gender-based conduct.” Among other things, Delo alleges that during her interview for the Wardrobe Supervisor position, when she was visibly pregnant, Tomlinson asked Marine, “What will she do with the baby?” and then hired a man for the position despite his having inferior qualifications, Am. Compl. ¶¶ 24-28; Tomlinson “chastise[d]” her in front of her team for bringing her newborn child on a performance trip to Washington, D.C., told Marine she was a “liability,” and told her that it was “completely unacceptable for a child to appear in any [Company] workspace, ever,” even though he did not similarly criticize male employees, including her husband, for previously bringing children to the workplace, id. ¶¶ 46, 55-58; Tomlinson once reached across her body and “hover[ed] closely over” her to use her desk phone while she was pumping breast milk, id. ¶¶ 80-81; and Tomlinson fired her at the end of the Company’s season without giving her a concrete reason, even though she routinely worked overtime and had just received praise from the Company’s Artistic Director for her work, id. ¶¶ 121, 125-30.

The court held that, viewed together, these allegations are sufficient to state a hostile work environment claim under the NYCHRL’s forgiving standard.

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