In Bonafede v. Museum of Modern Art, No. 150557/2024, 2025 WL 3634707 (N.Y. Sup. Ct. Dec. 11, 2025), the court, inter alia, held that plaintiff sufficiently alleged a claim of hostile work environment under the New York City Human Rights Law.
The court summarized the facts as follows:
Bonafede brings this action as a result of a number of alleged incidents of sexual abuse that he suffered between March 14 and May 31, 2010, while employed by MoMA for a performance art piece entitled “Imponderabilia,” which was part of a larger exhibit entitled “Marina Abramovic: The Artist is Present.” See NYSCEF Doc. No 2. He specifically describes multiple occasions when museum patrons, whom he calls the “Attendee Perpetrators,” groped his genitals while he was performing nude.
After summarizing the black letter law, the court applied it to the facts:
The FAC herein contains allegations that Bonafede was harassed by MoMA patrons and that MoMA “had the power to supervise and control the Exhibition, the Exhibition space, and Exhibition Attendees.” NYSCEF Doc. No. 13 ¶ 136; see also id. ¶ 84 (though MoMA knew about the sexual assaults, “MoMA continued to provide assistance to Attendee Perpetrators by furnishing them with an environment that MoMA knew would permit and enable sexual assaults to occur, and that MoMA knew with substantial certainty would actually result in more sexual assaults.”). The FAC further alleges that MoMA “failed to exercise reasonable diligence to prevent” acts of harassment against Bonafede by museum patrons. Id. ¶ 138; see also id. ¶¶ 83, 84, 87, 95, 119, 126-44, 161-63.
Pursuant to these allegations, Bonafede has adequately alleged that MoMA had sufficient levers of control and indicia of negligence regarding its patrons so as to permit the imputation of their offending conduct to MoMA for the purposes of surviving a pre-answer motion to dismiss.
MoMA also argues that “plaintiff fails to allege gender-based discrimination,” citing Chin v. New York City Hous. Auth., 106 A.D.3d 443, 445 (1st Dep’t 2013) (“Nor has the plaintiff demonstrated that she has been treated less well than other employees because of her protected status; or that discrimination was one of the motivating factors for the defendant’s conduct”) (citing Williams v New York City Hous. Auth, 61 A.D.3d 62, 75-76, 79-80 (1st Dep’t 2009)). The First Department has further held that the NYCHRL “speaks to unequal treatment and does not distinguish between sexual harassment and hostile work environment. It contains no prohibition on conflating claims.” Suri v Grey Global Group, Inc., 164 A.D.3d 108, 115 (1st Dep’t 2018).
The FAC alleges that MoMA: (1) knew that Bonafede was targeted for sexual assault because he was male (NYSCEF Doc. No. 1391); (2) knew that genital groping was being committed disproportionately against male Re-performers (id. ¶ 89); (3) knew that male Imponderabilia Re-performers had a higher risk of more serious forms sexual assault and that some of these men were substantially certain to suffer more sexual assault (id. ¶ 90); (4) required male Imponderabilia Re-performers to expose themselves to a degree of gender-based risk that female Re-performers were not required to submit to (id. ¶ 92); and (5) failed to protect Bonafede and other male performers from sexual assault because the genital groping was being perpetrated mostly or entirely against men. Id. ¶¶ 96-97.
The court concluded that “[w]hen reviewed in the light most favorable to Bonafede, these allegations are sufficient to support Bonafede’s claim that MoMA treated him less well than other employees because of his gender” and, therefore, that denial of defendant’s motion to dismiss was warranted.