When Race or Nationality-Based Comments and Jokes Can Rise to the Level of Illegal Discrimination in New York

Nationality/racial stereotypes span across all nationalities/races and a wide array of subject matter. What all racial stereotypes have in common is that they are offensive, harmful, and inappropriate for the workplace. If you’ve endured this kind of stereotyping at work, a violation of anti-discrimination law may have occurred, so it is well worth your while to contact an experienced New York City employment discrimination lawyer to discuss your circumstances.

Here in New York City, there’s an enhanced possibility that the racial stereotyping you endured at work broke the law. That’s because, in this city, there are multiple different laws banning employment discrimination based on race or nationality.

H.L.’s national origin discrimination case makes for a clear illustration. H.L., who was originally from China, worked for ConEd from 2004 to 2020. During that time, the employee allegedly endured various racist comments and taunts, including one coworker who “would pretend to be Chinese” and speak to H.L. in broken English with a mock Chinese accent. The coworker also frequently instructed H.L. to “open your eyes,” according to the complaint.

The coworker furthermore allegedly “tormented him about his mandatory drug testing in a sexually and racially charged manner.” Specifically, the coworker repeatedly brought up H.L.’s having to expose his genitalia during drug tests, as well as the small size of H.L.’s penis.

In this case, the worker brought claims based upon both the New York State Human Rights Law and the New York City Human Rights Law. The inclusion of both of those laws was very important to H.L.’s case because those laws had two different standards for assessing what does or does not constitute illegal discrimination. The city says simply that the discrimination targeted toward you must have been something more than “petty slights or trivial inconveniences.” The state law — at the time that H.L. filed his case — said that the discrimination you endured must have been either severe or pervasive in nature to represent a violation. (Today, the NYSHRL mirrors the NYCHRL in requiring workers to prove only that the discrimination they endured was something more than petty slights or trivial inconveniences.)

The Big Gulf Between ‘Severe or Pervasive’ and ‘Petty Slights or Trivial Inconveniences’

Those distinctions mattered a great deal in H.L.’s case before the Appellate Division court. In reviving H.L.’s NYCHRL claims that the lower court had thrown out, the appeals court concluded that the conduct the worker alleged fell “within the broad range of conduct that falls between ‘severe and pervasive’ on the one hand and a ‘petty slight or trivial inconvenience’ on the other.” That meant that, while H.L. did not have a viable NYSHRL claim, he was entitled to continue pursuing his case under city law.

As a worker in New York, it is important to focus on one word in that quote from the court: broad. What the court is saying is that there are a lot of things that wouldn’t have made a viable discrimination or harassment case under the old “severe or pervasive” standard but are actionable as conduct constituting something more than petty slights or trivial inconveniences.

For example, a female video producer sued her employer for the “boys’ club” atmosphere of her workplace. Her allegations included men “conducting 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.” While these might have fallen short of the “severe or pervasive” standard, the court readily identified them as more than petty slights or trivial inconveniences.

More recently, the Second Circuit Court of Appeals ruled that a CEO who allegedly opined that Americans were “lazy, took too much time off [from work], watched too much TV, and had too many divorces” was enough to satisfy the “more than petty slights or trivial inconveniences” standard in a national origin discrimination case.

One’s job site should be a place for getting work done, not for enduring an array of tired generalizations and stereotypes tied to nationality, race, or some other protected characteristic. They’re not helpful and, what’s more, they may represent a violation of New York State and/or New York City law. If your workplace sounds like the above descriptions, reach out to the experienced New York national origin discrimination attorneys at Phillips & Associates. We recognize how damaging this sort of workplace can be, and we’re eager to get started going to bat for you. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

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