In Parham v. The City of New York, No. 450008/2021, 2024 WL 4373349 (N.Y. Sup Ct, New York County Oct. 2, 2024), the court denied defendants’ motion to dismiss plaintiff’s claims of race discrimination under the New York State and City Human Rights Laws.
This decision is instructive because it underscores that there is no “magic language” – i.e., a direct reference to one’s protected class – that must be uttered in order to make out a discrimination claim.
As to the state law, the court explained:
Here, Plaintiff states a cause of action for unlawful race discrimination under the NYSHRL. Plaintiff met his burden by pleading that he is a black male, was employed by the Law Department, received a favorable performance evaluation, had a material alteration of his job responsibilities, and was terminated (NYSCEF Doc No. 27, verified amended complaint ¶¶ 7, 20, 58, 60, 78, 86, 128, 166). Plaintiff’s allegations that Finkelstein and Segreti called black people lazy, referred to support staff as “lint on a jacket,” clucked at and subjected Plaintiff to unwanted comments about fried chicken, watermelon, and Oreos, are sufficient to raise an inference of discrimination (id. ¶¶ 21, 23, 25, 29, 31, 34, 35, 42). Defendants’ argument that Plaintiff’s amended complaint “largely consists of general workplace grievances without any factual connection to Plaintiff’s race” is wholly without merit (NYSCEF Doc No. 10, memorandum at 18). Not only are Plaintiff’s allegations specific and detailed, but they speak to a deeply historical invidious racial animus. The use of food, and particularly chicken and watermelon, to stigmatize and denigrate African Americans dates back to slavery and the postbellum era (see Burdick, John, Encyclopedia of Food and Agricultural Ethics, Race, Racial Identity, and Eating at 1577, https://food.unt.edu/documents/R.pdf [2014][“during this time, white Americans found ways to associate African Americans with certain foods, in particular chicken and watermelon, as a means to correlate blackness with inferiority [. . .] laziness, buffoonishness, and propensity for criminal activity”). Early entertainment often featured white performers in blackface eating chicken and watermelon to construct and perpetuate invidious and demeaning tropes (id. at 1578 [“Minstrel performances, vaudeville, film, and consumer culture utilized images of chicken and watermelon to produce a constant stream of anti-black imagery”]). The weaponization of food against African Americans is so ubiquitous that in 2014 then-President Barack Obama was featured in a cartoon with a white man asking if he had “tried the new watermelon flavored toothpaste” (Killough, Ashley, Boston Herald apologizes for Obama cartoon after backlash, CNN [Oct. 1, 2014], available at https://www.cnn.com/2014/10/01/politics/boston-herald-cartoon/index.html [last accessed Sept. 10, 2024]). On two occasions, once in 1997, and then again in 2013, famed golfer Tiger Woods was publicly subjected to comments about ordering fried chicken for the Masters champions dinner (Skretta, Dave, Zoeller: My Tiger comment was a joke gone awry, AP News [May 23, 2013], available at https://apnews.com/zoeller-my-tiger-comment-was-joke-gone-awry-faaed3e48e9e4c68a6808129a502bd30 [last accessed Sept. 10, 2024])).
To suggest, as Defendants do, that Plaintiff’s allegations are unconnected to race merely because they do not contain the words “black” or “African American” would distort the very notion of discriminatory animus and frustrate the purpose of anti-discrimination laws altogether (see Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 204 [1st Dept 2015][“It is true that discrimination seldom announces itself openly”]; Alhaj v New York City Health & Hosps. Corp., 22 NY Slip Op 22318, 1072 [Sup Ct, NY County 2022] [“Employers are rarely so cooperative as to notate in the file that they are taking an adverse action ‘for a reason expressly forbidden by law’ ”]). While express references to a protected trait can, and do, demonstrate direct evidence of discriminatory intent, direct evidence is not required, nor is it the standard (see Cadet-Legros, 135 AD3d at 204 [“it is important that discrimination plaintiffs be permitted to present a wide range of indirect evidence of discrimination, including the fact that a defendant [or its agent or employee] used coded language, that is probative of discriminatory intent”]; Alhaj, 22 NY Slip Op 22318 at 1072 [“An inference of discrimination can be drawn from circumstances such as ‘the employer’s criticism of the plaintiff’s performance in ethnically degrading terms; or its invidious comments about others in the employee’s protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff’s [adverse employment action]’ ”). As such, because Plaintiff sufficiently stated a cause of action for unlawful race discrimination under the NYSHRL, Defendants’ motion to dismiss Plaintiff’s first cause of action is denied.
As to plaintiff’s city law claim, the court explained that “[w]ith respect to the treatment of other employees, Plaintiff’s allegations that Defendants failed to timely investigate his claims, that black support staff were asked to do more custodial tasks than white support staff, and that Plaintiff was given an impromptu performance evaluation shortly after he and two other black employees were targeted to clean the office sufficiently pleads a cause of action for race discrimination under the NYCHRL.”