In Espinoza v. CGJC Holdings LLC d/b/a Joe and Pat’s Pizzeria and Restaurant et al, 23cv9133 (DLC), 2024 WL 3520662 (S.D.N.Y. July 23, 2024), the court, inter alia, granted defendants’ motion to dismiss plaintiff’s discrimination claim asserted under New York’s “lawful activities” discrimination law, Labor Law § 201-d. (The court did, however, deny defendants’ motion to dismiss plaintiff’s hostile work environment and retaliation claims.)
As pertinent to the Labor Law claim, defendants terminated plaintiff the day after she posted to her Instagram story the following: “if you thinking about coming to eat at my job, dont bc my manager told me he’s voting for trump don’t give racists your money !!!!”
The court summarized the law as follows:
Finally, the [complaint] alleges that Espinoza was wrongfully terminated in violation of NYLL § 201-d(2)(c), which makes it unlawful for any employer to “discharge from employment or otherwise discriminate against an individual … because of … an individual’s legal recreational activities … outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property.” Id. The statute defines “recreational activities” as “any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.” NYLL § 201-d(1)(b).
Applying the law, the court explained that “[e]ven assuming posting to Instagram is a ‘recreational activity’ under the NYLL, the complaint alleges that the plaintiff was discharged, not for the activity of [posting to Instagram], but for the content of the [ ] post.” [Citation and internal quotation marks omitted.]