05/19/2020
Sexual harassment is prohibited as a form of s*x discrimination under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). See 42 U.S.C. § 2000e-2(a)(1); N.Y. Exec. L. § 296; Admin. Code § 8-107; Pelgrift v. 335 W. 41st Tavern Inc., 2017 WL 4712482 at *10 (S.D.N.Y. 2017); Ananiadis v. Mediterranean Gyros Products, Inc., 151 A.D.3d 915 (2d Dep’t 2017); Williams v. New York City Housing Authority, 61 A.D.3d 62, 75 (1st Dep’t 2009).
Under Title VII, prohibited conduct may include “unwelcome s*xual advances, requests for s*xual favors and other verbal or physical conduct of a s*xual nature.” Pelgrift, 2017 WL 4712482 at *10 quoting Redd v. New York Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012) (internal quotations omitted). There are two types of s*xual harassment violations under Title VII: 1) quid pro quo and 2) hostile work environment. Pelgrift, 2017 WL 4712482 at *10. Quid pro quo s*xual harassment occurs when a supervisor makes an employee’s acceptance or rejection of unwanted s*xual conduct the basis for decisions affecting compensation, terms, conditions or privileges of employment. Garcia v. New York City Health and Hospitals Corp., 2016 WL 4097850 at *4 (S.D.N.Y. 2016) citing Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994). A hostile work environment occurs when s*xual harassment is so “severe or pervasive” as to “alter the conditions of [the victim’s] employment and create an abusive working environment.” Pelgrift, 2017 WL 4712482 at *10 quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal quotations omitted). Hostile work environment claims under the NYSHRL are governed by the same severe or pervasive standard. See Summa v. Hofstra University, 708 F.3d 115, 124 (2d Cir. 2013); see also Figueroa v. RSquared NY, Inc., 89 F. Supp. 3d 484, 489 (E.D.N.Y. 2015) (observing in a case with quid pro quo claims that: “The same standard is used when analyzing Title VII and NYSHRL claims.”) (internal citations omitted).
However, the NYCHRL is more protective than its federal and state counterpart, as interpretations of Title VII and the NYSHRL are only “a floor below which the [NYCHRL] cannot fall.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (internal citations and quotations omitted).
Under the NYCHRL, federal quid pro quo and hostile work environment standards of liability do not apply and instead the standard is whether an employee has “been treated less well than other employees because of her gender.” Garrigan v. Ruby Tuesday, Inc., 2014 WL 2134613 at *3 (S.D.N.Y.2014) citing Mihalik, Inc., 715 F.3d at 114; Williams, 61 A.D.3d at *78.
While the U.S. Supreme Court has characterized the severe or pervasive standard as a “middle path” between any conduct that is merely offensive and conduct that causes a “tangible psychological injury,” New York courts have found that this middle path allows for too much unwanted gender-based conduct and permits discrimination to play some significant role in the workplace. Williams, 61 A.D.3d at *75-76 citing Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). To ensure that discrimination plays no role in the workplace, New York courts have held that the standard in “terms-and-conditions” cases is whether an employee has “been treated less well than other employees because of her gender.” Williams, 61 A.D.3d at *78; see also Nelson v. HSBC Bank USA, 87 A.D.3d 995, 999 (2d Dep’t 2011).
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