In Smyth v. City of New York, No. 157294/2017, 2023 WL 8478880 (N.Y. Sup Ct, New York County Dec. 07, 2023), the court, inter alia, denied defendant’s motion for summary judgment on his claim of discrimination based on his perceived sexual orientation in violation of the New York City Human Rights Law (NYCHRL).
From the decision:
To make out a prima facie claim for sexual orientation discrimination, plaintiff must show that he was treated less favorably than other employees because of his sexual orientation (Zimmer v Warner Bros. Pictures, Inc., 56 Misc 3d 1208(A) [Sup Ct, NY County 2016] [internal citations omitted]). Though the NYCHRL requires more than “incivility, discourtesy, or disrespect” plaintiff need not establish that discriminatory remarks were “severe” or “pervasive” (Id.).
Here, plaintiff’s testimony as to Carrone’s sexually-charged inquiries as well as his demand that plaintiff permit him to perform oral sex or be written-up raises an issue of fact as to whether he was treated less well than other employees because of his sexual orientation (See Crookendale v New York City Health and Hosps. Corp., 175 AD3d 1132, 1132 [1st Dept 2019] [“plaintiff sufficiently described being touched and complimented inappropriately to permit a jury reasonably to find that she was treated ‘less well’ than her male colleagues because of her gender and that the conduct complained of was neither petty nor trivial”]; Rivera v United Parcel Serv., Inc., 148 AD3d 574, 574-75 [1st Dept 2017] [evidence that “supervisor repeatedly made gross and highly offensive sexually-charged remarks to plaintiff, including in front of plaintiffs subordinates, causing them to lose respect for plaintiff and fueling rumors about her proclivity to engage in workplace affairs” supported jury’s finding that defendant engaged in gender discrimination under NYCHRL]). Contrary to defendants’ arguments in reply, the fact that plaintiff testified that he did not respond to Carrone’s inquiries or his demand to perform oral sex does not reduce this sexual harassment to petty slights or trivial inconveniences. Accordingly, that branch of the City’s motion for summary judgment dismissing claim for discrimination based on perceived sexual orientation is denied.
The court did, however, grant defendant’s motion as to plaintiff’s claims for age discrimination, disability discrimination, and retaliatoin.