In Elco, Melissa Breitenbach v. Yvette Aguiar, et al, No. 2022-01691, 614414/20, 2024 N.Y. Slip Op. 01796, 2024 WL 1423822 (N.Y.A.D. 2 Dept., Apr. 03, 2024), the court affirmed the lower court’s denial of defendant’s motion, pursuant to CPLR 3211(a), to dismiss plaintiff’s discrimination claim asserted under the New York State Human Rights Law.
From the decision:
The NYSHRL prohibits employers from subjecting an individual to harassment because of, inter alia, the gender identity or expression, sex, or familial status of that individual (see Executive Law § 296[1][h]). “Such harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories” (id.). Where a plaintiff files a claim under section 296(1)(h) on or after October 11, 2019, the plaintiff need not establish that the alleged harassment “ ‘would be considered severe or pervasive under precedent applied to harassment claims’ ” (Golston–Green v. City of New York, 184 A.D.3d 24, 41 n 3, 123 N.Y.S.3d 656, quoting Executive Law § 296[1][h]; see L 2019, ch 160, §§ 2, 16). It is also unlawful under the NYSHRL “for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under [the NYSHRL], or to attempt to do so” (Executive Law § 296[6]). Where a plaintiff files a claim under the NYSHRL on or after August 12, 2019, the NYSHRL shall be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of [the NYSHRL], have been so construed.
Here, [defendant] Freeborn failed to establish that the plaintiff did not have a cause of action against him under the NYSHRL pursuant to an aiding and abetting theory of liability (see Buchanan v. Law Offs. of Sheldon E. Green, P.C., 215 A.D.3d at 794–795, 187 N.Y.S.3d 711). As the plaintiff commenced this action after October 11, 2019, she was not required to establish that the alleged harassment was severe or pervasive (see Executive Law § 296[1][h]; Golston–Green v. City of New York, 184 A.D.3d at 41, 123 N.Y.S.3d 656). Rather, the applicable standard is whether the plaintiff has been subjected “to inferior terms, conditions or privileges of employment because” of her gender identity or expression, sex, or familial status as a single mother (Executive Law § 296[1][h]). The plaintiff has a cause of action under this more liberal standard, as her evidentiary submissions and allegations in the complaint demonstrated that her superior officers subjected her to inferior employment conditions as a result of her gender identity, sex, and familial status. Furthermore, contrary to Freeborn’s contention, the plaintiff sufficiently alleged that Freeborn had aided, abetted, and incited this alleged harassment (see Executive Law § 296[6]). The plaintiff alleged that the harassing conduct by her superiors was instigated by Freeborn sending her harassing text messages and contacting her superiors both about her personal relationships and to make false accusations regarding custody issues and her work performance.
[Citations and internal quotation marks omitted.]
The court thus concluded that plaintiff “sufficiently alleged that, without Freeborn’s conduct, there is no indication that her superiors would have subjected her to inferior terms of employment.”