In a significant decision dealing with the New York City Human Rights Law (“NYCHRL”), a federal appeals court held that this law is far broader in its protections of employees than either Title VII or state law and must be considered independently by the courts.
This was a case of gender discrimination and retaliation, where a female employee alleged that her supervisor ran the office like a "boys’ club," solicited her sexually, and fired her for rebuffing his advances. The lower court granted summary judgment to the employer, and, the appeals court found, erroneously relied upon the traditional federal standards for discrimination and retaliation – which was held to be inapplicable under the NYCHRL.
Although some commentators have given the case only a superficial reading when they observe that given the substantial evidence of the employee’s poor performance the ruling is that “even mediocre employees” are protected from sexual harassment, the real takeaway is the Court’s holding that when NYC passed the Local Civil Rights Restoration Act of 2005, it intended to abandon federal standards and create an independent analysis of NYCHRL claims. The Court’s 39-page discussion was clearly meant as a guide to bench and bar as to how discrimination claims must be analyzed under the various laws.
Significantly, the Court noted that federal district courts have misapplied the NYCHRL since 2005 and relied still upon the federal analysis. Indeed, the Court held that the City law was intended (1) to be “broadly construed” to provide broad remedies for discrimination, and that (2) a “one-way ratchet” was created by which federal and state standards were only to be a floor below which the City law cannot fall.
The result of the decision – discrimination claims that fail under federal and state law must be considered separately under the NYCHRL.
So you can throw out the “severe or pervasive” element for sexual harassment – and substitute “liability simply by the existence of differential treatment.” That is, gender discrimination can be established if the employee shows that she has been treated “less well” than other employees because of gender. Severity or pervasiveness is relevant only as to damages. “Even a single comment that objectifies women” may be actionable given the totality of the relevant circumstances.
As an employer, you can also forget about pinning your hopes on summary judgment – the Court pretty much said that, although summary judgment is a federal procedural rule that the NYC law cannot abrogate, a jury is a better position to assess NYCHRL claims.
This decision, which is reader friendly, is one of the few that we recommend that employers, general counsel and HR people read.