Aspiring NYPD Officer’s Age Discrimination Claims Survive Dismissal Against the City of New York

In Herrera v. The City of New York, No. 152586/2022, 2023 WL 5805938 (N.Y. Sup Ct, New York County Sep. 07, 2023), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s age discrimination claims asserted under the New York State and City Human Rights Laws.

Among other things, this decision illustrates the difference between federal discrimination law, on the one hand, and the more plaintiff-friendly state and city laws.

From the decision:

To state a claim for employment dissemination under the NYSHRL, plaintiff must allege that: (i) he is a member of a protected class; (ii) he was qualified to hold the position; (iii) he suffered an adverse employment action; and (iv) the adverse action occurred under circumstances giving rise to an inference of discrimination (Ayers v Bloomberg, LP., 203 AD3d 872, 874 [2d Dept 2022]). The elements of a discrimination claim under the NYCHRL largely mirror the foregoing, except that a plaintiff need not plead that he suffered an “adverse employment action,” but only that he was “treated differently” because of his age (Askin v Dept. of Educ. of the City of New York, 110 AD3d 621, 622 [1st Dept 2013]). Although the complaint could be more artfully drafted, in light of the generous standard under which such claims are reviewed on a motion to dismiss, it sufficiently states a discrimination claim under the NYSHRL and NYCHRL through allegations that plaintiff was over thirty-five years old at the time he was considered for the subject position but was not selected for the position because of his age, while other similarly situated candidates who were under thirty-five were selected (See e.g., Pustilnik v Battery Park City Auth., 71 Misc 3d 1058, 1071 [Sup Ct, NY County 2021]).

The City’s argument in opposition that plaintiff must be over the age of forty to be a member of a protected class, is incorrect–this requirement applies to discrimination claims brought under the Federal Age Discrimination in Employment Act of 1967 (See 29 USC § 631[a]). By contrast, the NYSHRL provides that it is an unlawful discriminatory practice for an employer to refuse to hire an individual eighteen years of age or older because of such individual’s age (See Executive Law § 296[3-a][a]). The NYCHRL, in turn, provides that it is an unlawful discriminatory practice for employers to refuse to hire a job applicant because of that applicant’s “actual or perceived age” (Administrative Code § 8-107[1][a][2]) and contains no language limiting its applicability to job applicants over eighteen years old. In light of the foregoing, and mindful of the fact that the NYSHRL represents “a floor below which the City’s Human Rights law cannot fall” (Williams v New York City Hous. Auth., 61 AD3d 62, 66 [1st Dept 2009]), the Court concludes that plaintiff’s age does not present a bar to his age discrimination claim under the NYSHRL or NYCHRL.

Based on this, the court denied that branch of defendant’s motion to dismiss plaintiff’s age discrimination claims under the NYSHRL and NYCHRL.

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