In Lyu v. Alfa Chemistry Inc. et al, 23-CV-7951 (EK)(ST), 2025 WL 1093134 (E.D.N.Y. April 13, 2025), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claim of sex-based discrimination under the New York State Human Rights Law.
The court summarized, and applied, the law as follows:
The elements of a disparate treatment claim under the NYSHRL are like those for Section 1981. A plaintiff must allege “(1) membership in a protected class; (2) satisfactory job performance; (3) an adverse employment action; and (4) circumstances surrounding the employment action that give rise to an inference of discrimination [based on sex].” Fahrenkug v. Verizon Serv. Corp., 652 F. App’x 54, 56 (2d Cir. 2016). The causation standard, however, is different: a NYSHRL plaintiff need only show that her sex was a “motivating factor” behind the adverse employment action. Farmer v. Shake Shack Ents., 473 F. Supp. 3d 309, 324 (S.D.N.Y. 2000) (quoting Vega v. Hempstead Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015)).
Once again, the parties do not dispute that Lyu was a member of a protected class and that her job performance was satisfactory. As for adverse employment action, Lyu appears to identify two types. See Compl. ¶ 191. The first is her firing, and as already noted, dismissal is a paradigmatic adverse action. Sealy, 408 F. Supp. 3d at 226.
The second is the “bullying and harassment” she faced from Lin and her male coworkers. See Compl. ¶ 191. There are a few ways to interpret this assertion. Lyu may be arguing that Lin engaged in an adverse employment action when he shouted at her for reporting harassment by her colleagues. This argument fails, because courts in this circuit have consistently held that yelling, rudeness, and unjustified criticism are not themselves adverse employment actions. See Missick v. City of New York, 707 F. Supp. 2d 336, 348 n.5 (E.D.N.Y. 2010) (collecting cases).
Relatedly, Lyu may be suggesting that Lin’s screaming, together with his failure to stem the stream of abuse directed at her by others, constituted an adverse employment action. But this argument fits better under the rubric of a hostile work environment claim. See, e.g., Legg v. Ulster Cnty., 979 F.3d 101, 115 (2d Cir. 2020) (supervisor may be liable for employee’s conduct under hostile work environment theory where supervisor had actual or constructive knowledge of employee’s harassing behavior but “failed to take appropriate remedial action”). So, for purposes of the disparate treatment claim, the only relevant adverse employment action is Lyu’s firing.
As for causation, Lyu has plausibly alleged that her sex was a motivating factor in the defendants’ decision to fire her. Specifically, she has alleged that the defendants fired her because she did not conform to stereotypes about female docility. See Compl. ¶¶ 113-14, 169, 172; Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 200 (2d Cir. 2017) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250-52, 258, 272-73 (1989)) (“An adverse employment action “rooted in sex stereotyping … [is] actionable as sex discrimination.”). Chen is alleged to have “admitted on multiple occasions Defendants’ preference for hiring women because they do not complain.” Compl. ¶ 113. One of Chen or Lin said that the companies recruited women because they were “less wild than males and better at serving clients and supervisors,” id. ¶ 114 — further support for the allegation that sex stereotypes prevailed at the subject companies, and that Lyu’s termination occurred (at least in part) because she defied those stereotypes. Ultimately, both Chen and Lin cited Lyu’s repeated workplace complaints as the basis for her dismissal. Id. ¶¶ 169, 172.
Accordingly, the court concluded that plaintiff “has plausibly alleged that they fired her because she did not conform to their belief that female employees should keep workplace complaints to themselves.”