‘He Said, She Said’ Disputes and Discrimination Law in New York

In 1991, the FBI deemed Anita Hill’s accusation of sexual harassment by Clarence Thomas inconclusive “because of the ‘he said, she said’ nature of the allegation and denial.” That marked one of the first instances of “he said, she said” referring to a disputed sexual or interpersonal interaction. In politics, a “he said, she said” allegation may yield little or no results for an accuser. However, in a civil lawsuit for discrimination or harassment, a “he said, she said” case can have distinct benefits. One of those is that, if you’ve established that yours is a “he said, she said” case, then you’ve likely demonstrated enough to defeat your employer’s motion for summary judgment. Whether you are in the process of seeking to defeat your employer’s motion for summary judgment or develop a winning trial presentation, it pays to have legal representation from an experienced New York employment discrimination lawyer.

The pregnancy discrimination case of F.B., a dental assistant in New York City, is an example of this type of case and its impact on an employer’s efforts to obtain summary judgment.

The assistant began working for a pediatric dental office in Manhattan in May 2019. Her job involved taking x-rays and being present in the examination room when others administered nitrous oxide.

In early July, the assistant learned that she was pregnant. Because of F.B.’s relatively advanced age, her doctors deemed her pregnancy to be a high-risk one. Her medical team warned her to avoid nitrous oxide and x-ray radiation.

Medical research has established that nitrous oxide is a potential risk factor for pregnant mothers. The American Dental Association has warned that exposure to nitrous oxide potentially can harm the unborn child. Research completed in the 1990s specifically found that when pregnant women inhaled 30% nitrous oxide, both the mother and child experienced a decrease in “central vascular resistance.”

The Mayo Clinic has indicated that a pregnant woman’s exposure to high-dose radiation during certain periods of her pregnancy may increase the risk of “fetal growth restriction or birth defects.”

The assistant told the dentist about her doctor’s recommendations but the dentist denied the assistant’s request for a pregnancy accommodation, allegedly providing no reason instead telling the assistant “to continue working.” The dentist made that decision even though she advised “pregnant parents of patients to leave the room during the administration of nitrous for safety reasons.”

The dentist also allegedly inquired as to whether or not the assistant intended to terminate her pregnancy, warning her that keeping the baby would “hinder [her] in performing her duties” at work.

By the fall of 2019, the work relationship had continued to deteriorate. In an October meeting between the assistant, the office manager, and the dentist who owned the practice, the dentist allegedly told the assistant that she could only continue in her job if she obtained from her doctor a “letter indicating that there is no medical reason for [the assistant] not to perform routine dental duties including taking x-rays.”

According to the assistant, the dentist promised to transfer her to the general practice department. The assistant asked for a transfer to the periodontal treatment department instead. The dentist became displeased and told the assistant to get out, which she interpreted as “you’re fired.”

The following January, the assistant sued in federal court for discrimination and retaliation in violation of federal (Title VII), state (the New York State Human Rights Law), and city (the New York City Human Rights Law) law. The employer, in turn, filed a motion for summary judgment.

What You Need to Prove in Your Discrimination Case

In a discrimination case, the law imposes on the worker the burden of establishing what’s called a “prima facie case,” which comprises demonstrating four things:

  • that you were a member of a protected class
  • that you were qualified for the job you held
  • that your employer took an adverse action against you
  • that discriminatory motive was a factor in causing that adverse action.

After the worker does that, the employer must present a legitimate reason for its actions. The assistant’s employer asserted that it took action due to the assistant’s inability to perform some of the essential job duties of a dental assistant, which was sufficient to satisfy its burden of proof.

Next, the law shifts the burden back to the worker to show that the employer’s stated reason really was just a pretext for discrimination. In the assistant’s case, she argued that, despite the dentist’s arguments that F.B. was bad at her job, there was no evidence that backed up that assertion.

Additionally, her allegations presented a timeline in which the employer took adverse action against her very soon after she disclosed her pregnancy. That’s something that the law calls “temporal proximity.” While temporal proximity alone wasn’t enough to establish pretext, temporal proximity plus the assistant’s other arguments, when bound together, were sufficient.

What Your Employer Needs for Summary Judgment

A defense motion for summary judgment is a common step for an employer facing a discrimination lawsuit to take. A motion for summary judgment essentially argues that even if the court believes all the factual assertions the worker made and believes none of the factual assertions that the employer made, the employer still could not be liable. When that’s the case, the moving party is entitled to judgment in their favor without ever going through a trial.

Essentially, that means the case is one where no material facts are in dispute. If there are any facts in dispute that potentially could yield a judgment for the worker, then summary judgment isn’t appropriate and those factual disputes must be resolved by a jury (or a judge if the case proceeds as what’s called a “bench trial.”)

This background about summary judgment is important because a lot of workplace discrimination, harassment, or retaliation cases are the legal version of a “he said, she said” dispute. Whether discrimination, harassment, or retaliation did or did not take place rests specifically on whether the jury (or judge) believes the worker or believes the employer. When that’s true, a trial is appropriate and summary judgment is not.

The key takeaway from the assistant’s case was the judge’s assessment of the dispute. The judge wrote that the “Court does not here present an exhaustive list of Plaintiff’s arguments. What is presented, however, shows that before the Court is a classic ‘he-said/she-said scenario,’ which involves an assessment of credibility and the resolution of competing inferences from the disputed facts. Neither is for the Court to decide—that role is reserved for a jury.”

In other words, when you can persuade your judge that your discrimination case (at the summary judgment phase) is a he-said-she-said matter, you can persuade the court that it should deny your employer’s motion for summary judgment.

If you have experienced workplace discrimination, be aware that you’ll likely have to clear multiple hurdles to achieve success. There will likely be summary judgment motions, pretrial discovery, then a trial… and perhaps an appeal after that. As you seek justice, you need an experienced advocate on your side. The knowledgeable New York pregnancy discrimination attorneys at Phillips & Associates have spent decades fighting for the rights of workers throughout the five boroughs, Long Island, and Westchester County. Contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

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