By Brendan Carman
In a recent decision, a New York Supreme Court appellate judge held that under the New York City Human Rights Law (“NYCHRL”), a plaintiff only has to demonstrate they were treated “less well” than those outside their protected class to establish a claim of gender discrimination. The plaintiff does not have to show that they suffered an adverse employment action.
An adverse employment action generally refers to an employer decision that impacts you negatively in a concrete way, i.e., a pay cut, a reduction in benefits, or termination. This is a higher burden than simply proving that you were treated “less well” than someone outside of your protected class.
In Bond v. New York City Health and Hospitals Corp., the plaintiff raised claims of gender discrimination, retaliation and constructive discharge. The trial court dismissed the plaintiff’s gender discrimination claim because the plaintiff did not show that her employer performed an adverse employment action against her.
The First Department of the Appellate Division reversed the trial court’s decision. The court noted that the plaintiff had provided a substantial amount of proof showing that after she denied her supervisor’s sexual advances, she “was unjustifiably criticized for her work product and attendance by her supervisors and stripped of her assignments.” Even if this did not amount to an “adverse employment action,” it was enough to show that she was treated “less well” on account of her gender.
The court also clarified that, unlike federal law, the NYCHRL does not differentiate between sexual harassment and other forms of gender discrimination. Rather, sexual harassment is merely a “species” of gender discrimination under the NYCHRL. Therefore, plaintiffs with sexual harassment claims only have to prove they were treated less well, too.
This decision highlights the broad protections against discrimination under the NYCHRL. If you believe you are being treated differently based on your gender, you should speak with a New York-registered employment law attorney.