In Pullman et al v. Collins et al, No. 24-CV-1383 (KMK), 2025 WL 2673807 (S.D.N.Y. Sept. 18, 2025), the court, inter alia, denied defendants’ motion to dismiss a plaintiff’s claim of hostile work environment sexual harassment asserted under the New York State Human Rights Law.
From the decision:
Next, Defendants argue that Dinsmore has failed to state a sexual harassment claim because she points to only “two isolated and unrelated instances,” which are insufficiently severe to establish a hostile work environment. (Defs’ Mem. 14–15.)
To begin, Defendants cite to the incorrect standard. Pre-amendment NYSHRL hostile work environment claims were analyzed in the same manner as Title VII claims, which require plaintiff to allege misconduct “that is sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create an abusive working environment.” Ancrum v. New York City Dep’t of Env’t Prot., No. 23-CV-10978, 2024 WL 5009145, at *5 (S.D.N.Y. Dec. 6, 2024) (alterations adopted) (citing Littlejohn, 795 F.3d at 320–21); see Everett, 2023 WL 5629295 at *12 (noting “NYSHRL and Title VII hostile work environment claims were analyzed in the same manner” prior to 2019). However, as with other discrimination claims, post-amendment NYSHRL hostile work environment claims require a plaintiff to show only that “they were subjected to inferior terms, conditions, or privileges of employment because of [their] membership in one or more protected categories.” Peterec, 2024 WL 4337526, at *8; see also Samuels v. City of New York, No. 22-CV-1904, 2023 WL 5717892, at *9 (S.D.N.Y. Sept. 5, 2023) (same). “Under that standard, ‘the action’s shorthand[ ] name is somewhat of a misnomer’ as a plaintiff need not plead comments that are outright ‘hostile’ to state a claim.” Peterec, 2024 WL 4337526, at *8 (quoting Verne, 697 F. Supp. 3d at 61 (discussing the analogous NYCHRL standard)). Instead, it is enough that a plaintiff “allege[s] only that they have been ‘treated less well at least in part because of [their] gender.’ ” Kulick, 2025 WL 448333, at *8 (quoting Delo, 685 F. Supp. 3d at 183); see Peterec, 2024 WL 4337526, at *8 (same).11F12 Accordingly, a NYCHRL claim—and thus, a post-amendment NYSHRL claim—cannot survive a motion to dismiss “only when it raises a ‘truly insubstantial case in which [the] defendant’s behavior cannot be said to fall within the broad range of conduct that falls between severe and pervasive on the one hand and a petty slight or trivial inconvenience on the other.’ ” Cf. Moazzaz v. MetLife, Inc, No. 19-CV-10531, 2021 WL 827648, at *8 (S.D.N.Y. Mar. 4, 2021) (quoting (Hernandez v. Kaisman, 957 N.Y.S.2d 53, 58–89 (App. Div. 2012)).
Here, the Court concludes that Dinsmore has adequately alleged that she was treated less well because of her gender. All Plaintiffs, including Dinsmore, allege that they “were subjected to inappropriate sexual commentary on an almost near daily basis” from the kitchen staff at Publick House, who would “grab at the Plaintiffs …, comment on their bodies, [and] ask if they liked giving oral sex.” (SAC ¶ 186.) Moreover, Dinsmore points to an occasion where a customer “video-tap[ed] underneath her skirt,” (id. ¶ 184), as well as a specific November 2024 incident where a chef “shout[ed] at Dinsmore to give him oral sex,” (id. ¶ 187). Under the NYSHRL’s lenient standard, these allegations are sufficient to show that Dinsmore, at least, was treated less well because of her gender. See Kulik, 2025 WL 448333, at *9–10 (noting that “[e]ven a ‘single comment that objectifies women … made in circumstances where that comment would, for example, signal views about the role of women in the workplace [can] be actionable’ ” and finding that comments about female employee’s “weight and appearance” “objectif[ied] women” (quoting Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 41 n.30 (App. Div. 2009)); see also Ward, 2023 WL 5353342, at *12 (denying motion to dismiss where plaintiff alleged, inter alia, that defendant “regularly made sexist remarks about women,” “implicitly permitt[ed] men to look up women’s skirts … and [took] no action when [the plaintiff] complained about this”).13Nonetheless, Defendants assert that Dinsmore’s claim must fail because “Defendants cannot be held liable for the alleged harassment by Plaintiffs’ co-workers under the NYSHRL” unless Defendants “encourage[ed], condon[ed], or approv[ed]” the harassment. (Defs’ Mem. 13 (citations omitted).) Indeed, under the NYSHRL, an employer is only liable for the discriminatory acts of its employees if “the employer acquiesced in the discriminatory conduct or subsequently condoned it.” Castillo v. Isakov, No. 22-CV-6888, 2023 WL 6664552, at *6 (S.D.N.Y. Oct. 12, 2023) (quoting Father Belle Cmty. Ctr. v. N.Y. State Div. of Hum. Rts. Ex rel. King, 642 N.Y.S.2d 739, 746 (App. Div. 1996)); see also Marchuk v. Faruqi & Faruqi, LLP, 100 F. Supp. 3d 302, 307 (S.D.N.Y. 2015) (noting that, under the NYSHRL, “an employer is never strictly liable for the conduct of employees, even if the harassing employee is [the] [p]laintiff’s supervisor,” but instead, “is only liable for conduct that it encouraged, condoned, or expressly or impliedly approved”). “Condonation … contemplates a knowing, after-the-fact forgiveness or acceptance of an offense.” Castillo, 2023 WL 6664552, at *6 (quoting State Div. of Human Rights ex rel. Greene v. St. Elizabeth’s Hosp., 487 N.E.2d 268, 269 (N.Y. 1985)); see also M.H. v. Starbucks Coffee Co., No. 22-CV-10507, 2023 WL 5211023, at *5 (S.D.N.Y. Aug. 13, 2023) (same). “Alternatively, an employer’s calculated inaction in response to discriminatory conduct, may as readily as affirmative conduct, indicate condonation.” Soto v. CDL (New York) L.L.C., No. 18-CV-5678, 2020 WL 2133370, at *14 (S.D.N.Y. May 5, 2020) (quoting E.E.O.C. v. Suffolk Laundry Servs., Inc., 48 F. Supp. 3d 497, 522 (E.D.N.Y. 2014)); see also Castillo, 2023 WL 6664552, at *6 (same).
Defendants assert that Dinsmore “do[es] not allege that Defendants were aware of this conduct” other than a single conclusory allegation that Plaintiffs “complained without any allegations setting forth when they complained, who they complained to, what they complained about, and what was done in response to the complaints.” (See Defs’ Mem. 13 (citing SAC ¶ 186).) Contrary to Defendants’ assertions, however, Dinsmore alleges that she complained to Dana Collins on two specific occasions: first when a customer filmed up Dinsmore’s skirt, (SAC ¶¶ 184–85), and second, in November 2024, when Dinsmore informed Collins both that the kitchen staff “inappropriately touched the female staff” and that a chef at Publick House had shouted at Dinsmore “to give him oral sex,” (id. ¶ 187). Dinsmore also alleges that, on both occasions, Collins refused to take any action and instead, threatened to discipline Dinsmore. (See id. ¶ 185 (“Collins did not do anything and instead reprimanded Dinsmore for complaining ….”); id. ¶ 187 (“Collins stated that she would not do anything about the chef’s behavior because it was not as easy to replace a chef as it was a bartender or server.”)). These allegations of “calculated inaction” are sufficient to impute liability to Defendants under the NYSHRL. See also Guzman v. Macy’s Retail Holdings, No. 09-CV-4472, 2010 WL 1222044, at *11 (S.D.N.Y. Mar. 29, 2010) (finding that plaintiff pleaded facts “demonstrating that [her employer] condoned, encouraged, or approved of the discriminatory acts at issue” when she alleged she complained to the Human Resources Regional Vice President who “not only refused to investigate but threatened her with termination if she made further complaints”); Melendez v. Int’l Serv. Sys., Inc., No. 97-CV-8051, 1999 WL 187071, at *15 (S.D.N.Y. Apr. 6, 1999) (finding allegations that “[p]laintiff reported his discriminatory treatment … to numerous people up the chain of command in the management of [defendants], yet no remedial action was taken” were sufficient to “indicate condonation” (internal quotation marks omitted)); cf. Burke v. Villa, No. 19-CV-2957, 2021 WL 5591711, at *9 (E.D.N.Y. Nov. 30, 2021) (denying summary judgment where a jury could find that a lack of response to plaintiffs “direct complaint of ‘continuous[ ] touching,’ ” as well as the “decision not to discipline [the harasser] could … be considered condonation”); Prophete-Camille v. Stericycle, Inc., No. 14-CV-7268, 2017 WL 570769, at *10 (E.D.N.Y. Feb. 13, 2017) (finding, on summary judgment, that “[d]efendant’s total inaction in response to [p]laintiff’s alleged complaints constitutes condonation such as to impute liability to [d]efendant for [the harasser’s] conduct”).
Based on this, the court held that denial of defendants’ motion as to this plaintiff’s sexual harassment claim was warranted.