There’s one state where bringing a sexual harassment claim is much easier than the rest

In most places, a plaintiff who claims that their former employer sexually harassed them must establish that the conduct to which they were subjected was severe or pervasive enough to alter the conditions of employment and create a hostile or abusive work environment.

In New York, however, not so much.

In this recent federal court decision, the defendants sought to dismiss the plaintiff’s sexual harassment claims because, according to the defendants, they amounted to “nothing more than mere sporadic, insensitive comments.” To support their argument, the defendant cited a bunch of earlier decisions arising under Title VII of the Civil Rights Act of 1964, where courts had applied the “severe or pervasive” standard to weigh the plaintiff’s sexual harassment claims.

And a New York judge gave those Title VII decisions the back of the hand.

That’s because, under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL), the federal “severe or pervasive” standard of liability does not apply.

Under the NYCHRL, a plaintiff must simply show that they were subjected to unwanted gender-based conduct. Under the NYSHRL, the plaintiff only needs to show that they were subjected to inferior terms, conditions, or privileges of employment based on gender. For a female plaintiff trying to get past a motion to dismiss, that means alleging that the defendant treated her worse than other men.

In this case, the plaintiff alleged that her direct (male) supervisor often called her “a single woman,” an “old woman,” and an “old Asian woman with no kids.” Additionally, when the plaintiff divulged she had breast cancer, the supervisor allegedly asked her whether she had breast cancer because her “breasts were so large.” On another occasion, when the plaintiff proposed implementing a menstruation leave policy, the supervisor asked her, “[d]o you even still menstruate?” to humiliate her.

While the New York laws are not general civility codes, showing discriminatory animus is enough to proceed with a lawsuit there. In this instance, the court concluded that these disparaging comments, often in front of the plaintiff’s team or co-workers, reflected a discriminatory motive. Likewise, a comment from the company’s owner that “all [the plaintiff] does is laugh and nod her head and agree,” after he commented on her supervisor’s leadership, inferred that the company treated the supervisor better based on his gender.

I’ve seen much worse. In most courts, these unwelcome comments would not be enough to state a claim for sexual harassment. But not so in New York. Taken together, these allegations plausibly state a claim that relates to sexual harassment.

If you do business in New York, you’ve got even more incentive to get right.

Or get left.