A unanimous panel of the New York State Appellate Division, First Department, recently reinstated three female plaintiffs’ sex discrimination claims against their employer under the New York City Human Rights Law (“CHRL”), while upholding the dismissal of the plaintiffs’ same claims under the New York State Human Rights Law (“SHRL”). Hernandez v. Kaisman
, 2012 N.Y. App. Div. LEXIS 9069 (1st Dep’t Dec. 27, 2012).
The plaintiffs worked for a doctor in New York City. Collectively, they alleged that the doctor sent them, as well as other male and female coworkers, a series of e-mails that created a sexually hostile work environment. The content of the e-mails included, among other things, a lecture by a fake professor regarding the F-word, a moving image of a snow sculpture in the shape of a penis “ejaculating” snow balls, a video clip of a woman simulating masturbation from a 2001 R-rated comedy, and a picture of a headless female body with two pairs of legs entitled “The Perfect Woman.” Moreover, each of the plaintiffs made additional allegations concerning the doctor’s inappropriate conduct toward them. One claimed that the doctor told her that she should get breast implants. Another claimed that the doctor touched her buttocks and told her to “tighten it up.”
Since the First Department’s seminal case of Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dep’t 2009), most New York City-based courts have analyzed claims under the CHRL separately from those brought under Title VII of the Civil Rights Act or the SHRL. Whereas courts generally evaluate Title VII or SHRL claims under a “severe or pervasive standard,” the First Department in Williams found that, in light of the City’s Local Civil Rights Restoration Act of 2005, CHRL claims must proceed to trial unless the defendant can affirmatively establish “that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider ‘petty slights and trivial inconveniences.’” Id. at 80.
Notwithstanding these differing standards, the lower court in Hernandez dismissed all of the plaintiffs’ claims, concluding that the conduct was too sporadic to rise to an actionable level under the SHRL or the CHRL. While the First Department agreed with the lower court’s dismissal of the SHRL claims, the panel reinstated the CHRL claims because “[c]onsidering the totality of the circumstances, a jury could reasonably determine that the emails were sent in an effort to specifically provoke a reaction from the women in the office, and that they were therefore singled out from the male employees.” The First Department also held that while the actions in question might have been isolated, this fact is “irrelevant under the City HRL.”
This case serves as an important reminder to employers in New York City of the more exacting standards of the CHRL towards employers, and the fact such claims more frequently may proceed to trial, even where courts dismiss Title VII and/or SHRL claims. Thus, New York City employers should monitor their workplace for sexually-inappropriate conduct, schedule regular sexual harassment and discrimination training, and promptly investigate and address employee complaints concerning such conduct.