Student’s NYC Human Rights Law Sexual Harassment Claim Survives Summary Judgment

In Doe v. New York City Department of Education and Mark Waltzer, 2024 WL 149289 (E.D.N.Y. Jan. 12, 2024), the court, inter alia, denied defendants’ motion for summary judgment as to plaintiff’s claims of sex-based discrimination asserted under the New York City Human Rights Law.

This case arises from plaintiff Doe’s allegations that, when she was a student, she was sexually harassed and abused by DOE employees while attending middle and high school.

From the decision:

Plaintiff has created an issue of material fact for her NYCHRL claim. That claim does not face the same retroactivity problem as her NYSHRL claim because City law prohibited gender discrimination in public accommodations such as schools at the time. See Administrative Code of the City of New York, § 8-107(4) (1998) (it is “an unlawful discriminatory practice for any person, being the … agent or employee of any place or provider of public accommodation because of … gender … directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof…”).

NYC DOE argues that the NYCHRL does not apply because the law’s public accommodations provisions do not encompass “victims of sex offenses or stalking” as a protected category. Def’s Mem. L. in. Supp. Summ. J. 12. This argument proves too clever by half: as was clearly established at the time of the alleged sexual abuse,5 gender discrimination6 in the educational context encompasses situations in which “a teacher sexually harasses and abuses a student.” Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75 (1992) (Title IX context) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)); see also Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650 (1999) (“ ‘sexual harassment’ is ‘discrimination’ in the school context under Title IX”). A teacher’s sexual assault of a student easily clears this bar. Thus, the alleged misconduct against Plaintiff is “gender discrimination” under the NYCHRL, which the CVA has revived.

Moreover, Plaintiff has proffered evidence that she was denied access to a public accommodation. Plaintiff’s schools were public accommodations as described in § 8-107(4), and Plaintiff has set forth facts showing that she suffered sexual abuse from their “agents or employees.” See Novio v. New York Acad. of Art, 286 F. Supp. 3d 566, 583 n.9 (S.D.N.Y. 2017) (applying NYCHRL in the educational setting). Under current NYCHRL caselaw, Plaintiff need only show that she was treated “less well” than other students on account of her gender to show that she was deprived of a public accommodation. See id. at 583 (“Under [§ 8–107(4)(a)], a plaintiff need not demonstrate that the treatment was ‘severe or pervasive’ … [but] need only show that she has been treated ‘less well’ than other [students] because of a protected characteristic.”). Arguably, the standard in place at the time could have relied on the more restrictive “severe or pervasive” test from federal caselaw. See Williams v. New York City Hous. Auth., 872 N.Y.S.2d 27, 36-39 (1st Dep’t 2009) (discussing the prior “view of the City HRL as simply mimicking its federal and State counterparts” in application of the federal “severe or pervasive” test for actionable sexual harassment; and adopting the “less well” test for HRL liability).

The court concluded by noting that “this question is academic for the purposes of this motion” since “sexual assault by a teacher of a student certainly constitutes ‘severe or pervasive’ treatment on account of gender” and, therefore, there were disputed material facts that preclude summary judgment.

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