In Lax v. The City University of New York, No. 504682/2021, 2023 WL 5485819 (N.Y. Sup Ct, Kings County Aug. 23, 2023), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s religion-based hostile work environment claims.
From the decision:
CUNY contends that plaintiffs’ hostile work environment claims fail to state viable causes of action and must be dismissed because the allegations in plaintiffs’ complaint describe “petty slights and trivial inconveniences.” Such contention must be rejected. “A contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense . . . which should be raised in the defendants’ answer and does not lend itself to a pre-answer motion to dismiss” (Kassapian v City of New York, 155 AD3d 851, 853 [2d Dept 2017]; see also Kaplan v New York City Dept. of Health & Mental Hygiene, 142 AD3d 1050, 1051 [2d Dept 2016]). Thus, on this pre-answer motion to dismiss, dismissal of plaintiffs’ hostile work environment claims under the NYSHRL and the NYCHRL on this basis is premature and must be denied.
Moreover, contrary to CUNY’s assertion, the allegations of plaintiffs’ complaint sufficiently plead that the discriminatory conduct was sufficiently severe or pervasive so as to permeate the workplace and alter the conditions of their employment (see Dillon v Ned Mgt., Inc., 85 F Supp 3d 639, 663 [ED NY 2015]; La Marca-Pagano, 129 AD3d at 920), and that plaintiffs were treated less well than other employees on the basis of their religion (see Bilitch, 194 AD3d at 1003; Reichman, 179 AD3d at 1118).
The court thus concluded that “at this juncture, plaintiffs have made sufficient allegations as to this disputed issue, particularly in view of the EEOC’s determination, which warrant denial of CUNY’s motion in this respect.”