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Workplace Issues: State law should mirror NYCHRL for equality

Lindy Korn

A female employee for an international brokerage firm in New York who alleged that her office was a “boys’ club” and that she was fired after she rejected the chief executive officer’s sexual propositions has triable gender discrimination and retaliation claims under the New York City law, the U.S. Court of Appeals for the Second Circuit held April 26, (Mihalik v. Credit Agricole Cheuvreux N. Am. Inc., 2d Cir. No. 11-3361).

After the plaintiff was hired, her boss subjected her to boorish behavior, propositioned her sexually and commented on her physical appearance.

Co-workers openly watched pornography on their computers and shared it with the plaintiff. The Court of Appeals said the workplace was like a “boy’s club.” After the plaintiff objected to their nonsense, her boss excluded her from meetings, berated her in front of of co-workers and criticized her work.

The plaintiff was fired, allegedly for poor job performance. Her boss was originally going to merely give her a performance warning, but the plaintiff was fired “after she asked him, in an allusion to his sexual propositions, “What’s not working out? Me and you or me at the company?”

The plaintiff did not sue under the state or federal anti-discrimination laws, the Second Circuit only resolved this case under the City Human Rights Law. The city law must be analyzed independently of state and federal law, and the courts must interpret the city law “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Thus the Second Circuit vacated summary judgment.

Under the city law, the plaintiff does not have to prove that management subjected her to severe or pervasive harassment. The plaintiff instead need only prove that, under the totality of the circumstances, “she has been treated less favorably than other employees because of her gender.” The defendants can win by showing that the unfavorable treatment amounted to “petty slights and trivial inconveniences.”

Here, the facts demonstrate the workplace “objectified” women.

Her retaliation claim also goes to trial. To win, the plaintiff has to prove that management’s response to her complaints about sexist behavior would deter an employee from complaining again. The plaintiff’s boss was not going to fire her until she made reference to the spurned sexual advances.

Even prior to her termination, after the plaintiff refused to sleep with her boss, he told her in front of colleagues that she “added nothing of value,” had “no f*****g clue what she was doing” and “was pretty much useless.”

Five months after the plaintiff rejected his sexual advances, she was given a poor performance review and terminated. While the Second Circuit said that the plaintiff had performance issues, that did not entitle the defendant to summary judgment on this record.

The Court of Appeals went out of its way to emphasize how the City Human Rights Law favors plaintiffs in employment discrimination disputes, and that this decision put management on notice that the revised City Human Rights Law is no joke, and that claims that fail under federal law can still go to the jury under the city law.

New York state residents outside of the city need equal protection of their civil rights! The jury should not be more reachable for only some residents of New York state.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at lkk75atty@aol.com or (716) 856-KORN (5676).