As we previously reported, in 2009, a New York state appellate court first held in Williams v. New York City Housing Authority, that a plaintiff claiming hostile work environment harassment under the New York City Human Rights Law (“NYCHRL”) need only demonstrate that he or she was treated less favorably than other employees because of his or her membership in a protected class. The Williams decision effectively eliminated the “severe or pervasive” test for harassment claims in the courts within New York’s First Department (which covers the counties of New York and the Bronx).  

In Nelson v. HSBC Bank USA, the Second Department (which covers the counties of Kings, Queens, and Richmond, among others) joined the First in rejecting the “severe or pervasive” standard for hostile work environment harassment claims. The Court also held that the 2005 amendment to the NYCHRL that clarified the broad reach of the statute applied retroactively. As a result, the Williams standard not only applies to all NYCHRL harassment claims arising in all five boroughs of New York City, but also applies to those claims that are based on incidents that pre-dated the 2005 amendment to the local anti-discrimination law. Given this holding on retroactivity, it is very possible that plaintiffs will seek to resurrect on appeal NYCHRL claims previously dismissed on statute of limitations grounds.

New York City employers should expect that more discrimination claims will be brought under the NYCHRL as this law provides greater protections to employees than its state and federal counterparts. Specifically, an employee need only demonstrate that alleged discriminatory conduct was more than “petty slights and trivial inconveniences” to support a hostile work environment claim under the NYCHRL rather than demonstrating that the conduct was sufficiently severe or pervasive.