The law generally, but especially the law of discrimination, is continuing to evolve and change. One jurisdiction where that’s true is New York State. State law recently changed in an important way that helps workers harmed by discrimination on the job. The change lowers the standard of proof the worker must establish to have a viable discrimination claim. This illustrates the importance of having legal representation from a knowledgeable New York City employment discrimination lawyer who is fully up-to-date on the law and knows how to use those recent changes to your maximum benefit.
As an example of how the above-mentioned change in New York State represents a positive change for workers, there’s this recent color discrimination case.
The worker, C.C., was a nanny in Manhattan. The nanny’s lawsuit alleged that her employer (who was also the mother of the child for whom C.C. provided care) “consistently mocked” the color of her skin. That mockery included telling her older son that the nanny’s face was the same color as “poop” and subsequently encouraging the child to repeat the scatological observation, laughing and smiling when he did so, according to the complaint.
The employer asked the court to dismiss the case, arguing that she engaged only in “one stray remark” across a five-year employment relationship with the nanny. The court concluded that the nanny sufficiently alleged more than just that, as the complaint laid out both the mother’s comment and the mother’s encouragement “of her son to make similar comments on several occasions.” That, the court decided, was enough to potentially constitute a hostile work environment under the NYSHRL’s current standard.
That current standard has only been in place a short while.
Back in 2019, New York State amended its Human Rights Law. Before that amendment, the NYSHRL’s standard for a viable case of discrimination mirrored the federal law standard. Specifically, both the state law and the federal law said that a worker pursuing a discrimination lawsuit had to establish that the discrimination they endured was severe or pervasive.
After the change, the NYSHRL’s standard now mirrors that of the New York City Human Rights Law. The latter standard says that a worker merely must establish that they suffered some sort of discrimination based on a protected characteristic and that the discrimination they endured harmed their employment. Once the worker does that, then the law places the burden on the employer to establish that the alleged discrimination amounted to nothing more than what the law calls “petty slights” or “trivial inconveniences.”
Other Rulings Have Addressed What is ‘More than Petty Slights or Trivial Inconveniences’
Here in the city, the “severe” or “pervasive” standard disappeared from the NYCHRL in 2009. In that intervening decade, courts have considered what petty slights or trivial inconveniences look like. In 2014, a court here in New York County sided with a female video producer in her sex discrimination claim against her employer. The court expressly stated that holding “employment luncheons and holiday parties at strip clubs, showing video clips of topless women or pictures of scantily dressed women to their employees, commenting on [women’s] physical attributes, or advertising sexual conquests or desires to employees, on a regular basis… is not conduct which can be said to be ‘petty slights or trivial inconveniences.'”
Another female worker in a different sex discrimination case alleged that her workplace included “constant use of language degrading women, telling of sexually explicit jokes, and overt viewing of pornography.” While insufficient to meet the severe or pervasive standard, the court said it was enough to satisfy the standard of “more than petty slights or trivial inconveniences.”
Additionally, engaging in insulting stereotyping based on a protected characteristic, even if less extreme than the sex discrimination the women above allegedly endured, can still be enough. In one case, an American sales manager who worked for an employer managed by people of Indian ancestry allegedly endured disparaging comments like “Americans are lazy, watch too much TV, have too many divorces,” take too much time off from work, arrive at work late, leave work early, and are too litigious. Those comments were enough to allow the employee to proceed with his national origin discrimination case.
Under both the NYCHRL and the NYSHRL, you can now file a discrimination claim and potentially win that case even if the discrimination you endured was neither severe nor pervasive. Understanding the complete impact of changes in the law, such as the NYSHRL’s elimination of the “severe or pervasive” standard, is one of the many vital reasons why it pays to have a knowledgeable legal professional representing you. The experienced New York employment discrimination attorneys at Phillips & Associates are dedicated to providing all clients with representation that is knowledgeable, diligent, and powerful. To find out more, contact us online or at (212) 248-7431 to set up a free and confidential consultation today.