Second Circuit: Claims Under the NYCHRL Shall Be Construed More Broadly Than Those Under Title VII or the NYSHRL (Mihalik v. Credit Agricole Cheuvreux North America, Inc.)

Plaintiff, a female employee, brought a sexual harassment and retaliation claim under the New York City Human Rights Law, N.Y.C. Adm. Code §8-101 et seq. ("NYCHLR"), against her employer, claiming that her supervisor ran the office like a "boys' club" and subjected her to sexually suggestive comments including propositioning her for sex. The Second Circuit, in a 39-page opinion, reversed the lower court's dismissal of Plaintiff's claims and remanded for trial, holding that Plaintiff's claims should be "broadly construed" under the NYCHRL's protections which are intended to go above and beyond the floor provided by federal law.

Plaintiff Mihalik was hired in July 2007 as a Vice President, working under the CEO and alleged harasser, Ian Peacock. From the beginning of her employment, Peacock engaged in harassing behavior towards Mihalik, asking her about her relationship status and referring to her as a "cougar." He would also comment on the way she dressed and talked about sexual positions that he preferred. On at least two occasions, Peacock propositioned Mihalik asking her to spend the night with him at a hotel. Each time Mihalik rejected him and said that his conduct was "offensive and shameful." Upon Mihalik rejecting Peacock's advances, Peacock engaged in retaliatory actions against her. In addition, when she complained to the Company's compliance officer, he stated that she "can't prove it, he's the CEO, and nobody is going to back you." The court also analyzed Mihalik's performance, finding that it was "deficient in certain respects through her tenure." Ultimately, Peacock fired Mihalik in April 2008 alleging poor performance.

The district court analyzed Mihalik's claims using traditional federal standards finding that Plaintiff failed to show any tangible job detriment and pretext. In reviewing the lower court's decision, the Second Circuit detailed the history of the NYCHRL and its amendment under the Restoration Act finding that courts must consider whether a claim is actionable under the NYCHRL even if it is not actionable under the federal or state law. Therefore, the standard which should be applied under the NYCHRL should not be "severe or pervasive," but rather "a rule by which liability is normally determined simply by the existence of differential treatment." Therefore, an employee need only show that she was treated "less well than other employees because of her gender" and that the conduct need not even be "tangible." The "severe or pervasive" standard is only relevant as to damages. Quoting the First Department's decision in Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27 (1st Dep't 2009), the Second Circuit stated "Even a single comment that objectifies women . . . made in circumstances where that comment would, for example, signal views about the role of women in the workplace [may] be actionable."

Under this standard an employer may still escape liability if it can show that the conduct complained of is nothing more than what a reasonable person would consider "petty slights and trivial inconveniences."

Analyzing the Plaintiff's retaliation claim, the Court noted that New York courts have also broadly interpreted the NYCHRL's retaliation provisions and that if an action would "deter a person from engaging in protected activity" then it should be deemed retaliatory. With these standards in mind, the court found that a jury could conclude that Peacock subjected her to a hostile work environment and unwanted sexual attention, noting that "even a poorly-performing employee is entitled to an environment free from sexual harassment." In addition, a jury may find that Mihalik engaged in protected activity when she opposed Peacock's discrimination by denouncing his sexual propositions and that Peacock's reason for firing her was a "mere cover-up for retaliation."