The Ever-Expanding Scope of the NYC Human Rights Law

In yet another decision holding that the protections of the New York City Human Rights Law (“NYCHRL”) exceed those provided for under the federal and state discrimination laws, the Second Circuit Court of Appeals in Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102 (2d Cir. 2013), vacated a lower court decision dismissing the plaintiff-appellant’s NYCHRL claims on summary judgment and held that NYCHRL claims must be analyzed separately from federal and state discrimination claims.

Mihalik’s supervisor, who was the chief executive officer of the firm, allegedly propositioned her twice for sex, which she declined, and engaged in various sexually inappropriate conduct. After Mihalik refused his advances, she alleged, he began to exclude her from meetings, demean her in front of her colleagues, and criticize her performance. Mihalik complained to the firm about her supervisor’s conduct, although her supervisor was reportedly unaware of her complaints. During this same period of time, Mihalik’s performance deteriorated and after she failed to complete an assignment, her supervisor terminated her employment. Mihalik alleged that she was only terminated after she asked during the termination meeting “What’s not working out? Me and you or me at the company?”

The district court granted summary judgment to the employer on the plaintiff’s NYCHRL claims, relying on the federal law standards yet explicitly noting that it was “incorporat[ing] the special considerations” for NYCHRL claims under Williams v. New York City Housing Authority, 872 N.Y.S.2d 27 (1st Dep’t 2009). The Second Circuit, however, rejected the district court’s reasoning and stated that a separate and independent analysis must be conducted for NYCHRL claims.

The court stated that in order to establish a gender discrimination claim under the NYCHRL, a plaintiff need only show by a preponderance of the evidence that she has been treated less well than other employees “because of her gender.” The court rejected the federal “severe and pervasive” standard used by the district court to assess Cheuvreux’s liability, finding that with respect to NYCHRL claims this standard is relevant only to the issue of damages. Although it noted that summary judgment would still be proper where an employer was able to prove that the reported conduct consisted of only “petty slights and trivial inconveniences,” the court stated that the totality of the circumstances must be considered and even a single comment could be actionable. The court also rejected the district court’s determination that Mihalik’s claim should be dismissed because she had failed to show that her alleged mistreatment was related to her discharge, reiterating that under Williams, differential treatment may be actionable even if it does not result in an employee’s discharge. Applying these standards, the court concluded that a jury could find that Mihalik was treated less well than her male colleagues and that the conduct of which she complained was neither petty not trivial.

With respect to the retaliation claim, the court held that under the NYCHRL a plaintiff must show that “she took an action opposing her employer’s discrimination…and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.” See id. at 112. Because a jury could find that the conduct experienced by Mihalik was likely to deter a reasonable person from opposing the harassing behavior in the future, the Second Circuit held that summary judgment was not proper.

While consistent with a growing body of cases holding that while certain conduct may not be actionable under federal or state law, that very same conduct may lead to a viable claim under the more lenient standards of the NYCHRL, Mihalik must be considered the seminal federal decision addressing the NYCHRL. Indeed, the Second Circuit, in a rather unusual step, set forth in detail the considerations by which federal courts reviewing NYCHRL claims are to be guided. Mihalik also serves as a stark reminder to employers located in New York City that their actions will be evaluated under two standards and that obtaining summary judgment dismissing claims asserted under the NYCHRL presents unique challenges not applicable to claims asserted under federal or state law.