I noticed a relatively obscure decision just handed down by a NY court under the New York City anti-discrimination law (NYCHRL: N.Y.C. Admin. Code §8-107(1)(a)). The City anti-discrimination law is somewhat similar to Title VII, but is way more expansive and has been construed much more broadly.
The NYC Law
Among other ways it differs from Title VII, the City law covers discrimination based on actual or perceived sexual orientation.
Additionally, when it comes to hostile work environment claims, the City law requires that an employee “need not establish that discriminatory remarks were ‘severe’ or ‘pervasive,'” as required under Title VII, although a claim “requires more than incivility, discourtesy, or disrespect,” and “more than ‘petty slights’ and ‘trivial inconveniences.’”
So acts of harassment, to be actionable, must fall somewhere on the continuum between petty and trivial, on the one hand, and severe or pervasive, on the other hand. But where on the continuum?
This ambiguity given the breadth of the local law adds up to one solid takeaway:
Employers must be extraordinarily vigilant about maintaining a discrimination-free workplace, and ensure “zero-tolerance” when it comes to workplace harassment. But this is not new to our readers.
The New Decision: Very Little May Constitute Harassment
Let me use the instant case to illustrate where one court came down on the “harassment continuum.”
Plaintiff alleged that a manager referred to a coat offered him by plaintiff when he was cold at work as “too gay,” and when admonished about saying this he replied “but look at it.”
That’s it. That was the entire set of facts set forth by plaintiff to make out a hostile work environment claim. (NB: As a matter of law, morality and best practices we have always strongly condemned any acts of workplace harassment – but we can now underscore this with this case).
NYC Employers take note:
The Court held that “these two remarks, alone, reasonably may be considered more than mere ‘petty slights’ and ‘trivial inconveniences’ … and thus raise a factual issue whether [the manager] treated plaintiff in a disparaging, degrading anti-homosexual manner and thus less favorably than other, heterosexual employees based on his sexual orientation.”
She therefore decided to leave it up to a jury to decide whether this “isolated but disparaging, degrading, anti-homosexual conduct altered plaintiff’s employment and unreasonably interfered with his work performance. …”
I think you need to read the Court’s reasoning to fully grasp the breadth of the NYC law:
“The two, isolated remarks are not pervasive, but their impact was harsh and hurtful. They are derogatory and degrading, based on sexual orientation, and subjectively intolerable to a homosexual person. … While the court must assess the evidence from the perspective of a reasonable person, the test is a reasonable person in plaintiff’s position, in the context where he experienced the disparaging, degrading remarks. …
“The very remark, whether it was ‘too gay’ or ‘so gay,’ unmistakably conveys that ‘gay’ is undesirable or unacceptable. … The two remarks signal a view about the desirability and acceptability of gay attributes in the work place and the propriety of a work environment that denigrates gay attributes. For a person who identified with those attributes, hearing those remarks directed at him, in the performance of his job, from a person in a superior position, surrounded by co-workers, exposing plaintiff to ridicule from them, if not from [the manager].”
So to repeat the title of this post: It may happen that the EEOC will soon be derided, defanged, defunded, deracinated, and/or “de-functed” – but in NYC the law has real teeth!
(See Zimmer v. Warner Brothers Pictures, Inc., 103732/2012, NYLJ 1202777712512, at *1 (Sup., NY, Decided December 23, 2016).)