Sui Generis--a New York law blog

Manhattan Judge Misses Mark On Gender Discrimination Claim

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Manhattan Judge Misses Mark On Gender Discrimination Claim

My regular readers know that I typically focus on the intersection of law and technology in this column. But occasionally I come across an issue or case unrelated to technology that merits further comment. Edwards v. Nicolai, 160830/13, a New York County Supreme Court decision, is just such a case.

At issue in this case was whether the plaintiff’s claims alleging gender discrimination could survive a motion to dismiss. The plaintiff alleged that because she was fired due to jealousy on the part of her employer’s wife, who believed that she was “too cute,” that she was discriminated against based on her gender.

The Court concluded that the allegations could not survive the motion to dismiss since being attractive is a trait that could apply equally to both men and women. The Court explained:

“Plaintiff has failed to plead in the Amended Complaint in sufficient detail what the term “too cute" is alleged to mean. The reference to the term "too cute” may not be a remark about physical appearance in the first place. In any event, plaintiff has also failed to allege that a reference to "too cute" is gender related, namely that the term was applied by plaintiff herein to men and women differently…With respect to whether appearance can be the basis of a discrimination claim under other statutory authority, courts have not found discrimination when the subject conduct or policy was not applied differently to men and women.”

Justice Shlomo Hagler completely misses the point. Certainly both men and women can be attractive. But in this case the issue was whether the plaintiff was terminated either because she was attractive to her male employer or because his wife believed he felt that way. In other words, was she terminated due to her uniquely feminine traits that may have appealed to her employer, a (presumably) heterosexual male?

Contrary to the Court’s assertion, she did not allege that she was terminated because she was an objectively attractive person; she was terminated because she was a woman - one who was believed to be attractive to her heterosexual male employer.

Had she been an objectively attractive male, this would never have been an issue since her employer’s wife would not have felt threatened in that situation. Instead, the allegations were grounded in the claim that she was terminated because she was a woman and her employer was a man. The termination occurred due to her uniquely feminine qualities—traits that would not have been appealing to her employer if she were a man.

This case sets dangerous precedent and allows an employer to fire an employee on the grounds that s/he was attracted to said employee due to his or her gender. The terminations would not occur because the employer was, as Judge Hagler asserts, attractive, but would instead occur because the employer-given his or her unique sexual orientation-found the employee attractive specifically because of his or her gender.

This ruling will give employers a free pass to terminate employees based solely on their gender, as long as the employer can claim that s/he happens to be attracted to that particular gender. If that’s not impermissible gender discrimination, then I’m not sure what is.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

 

Manhattan Judge Misses Mark On Gender Discrimination Claim

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

*****

Manhattan Judge Misses Mark On Gender Discrimination Claim

My regular readers know that I typically focus on the intersection of law and technology in this column. But occasionally I come across an issue or case unrelated to technology that merits further comment. Edwards v. Nicolai, 160830/13, a New York County Supreme Court decision, is just such a case.

At issue in this case was whether the plaintiff’s claims alleging gender discrimination could survive a motion to dismiss. The plaintiff alleged that because she was fired due to jealousy on the part of her employer’s wife, who believed that she was “too cute,” that she was discriminated against based on her gender.

The Court concluded that the allegations could not survive the motion to dismiss since being attractive is a trait that could apply equally to both men and women. The Court explained:

“Plaintiff has failed to plead in the Amended Complaint in sufficient detail what the term “too cute" is alleged to mean. The reference to the term "too cute” may not be a remark about physical appearance in the first place. In any event, plaintiff has also failed to allege that a reference to "too cute" is gender related, namely that the term was applied by plaintiff herein to men and women differently…With respect to whether appearance can be the basis of a discrimination claim under other statutory authority, courts have not found discrimination when the subject conduct or policy was not applied differently to men and women.”

Justice Shlomo Hagler completely misses the point. Certainly both men and women can be attractive. But in this case the issue was whether the plaintiff was terminated either because she was attractive to her male employer or because his wife believed he felt that way. In other words, was she terminated due to her uniquely feminine traits that may have appealed to her employer, a (presumably) heterosexual male?

Contrary to the Court’s assertion, she did not allege that she was terminated because she was an objectively attractive person; she was terminated because she was a woman - one who was believed to be attractive to her heterosexual male employer.

Had she been an objectively attractive male, this would never have been an issue since her employer’s wife would not have felt threatened in that situation. Instead, the allegations were grounded in the claim that she was terminated because she was a woman and her employer was a man. The termination occurred due to her uniquely feminine qualities—traits that would not have been appealing to her employer if she were a man.

This case sets dangerous precedent and allows an employer to fire an employee on the grounds that s/he was attracted to said employee due to his or her gender. The terminations would not occur because the employer was, as Judge Hagler asserts, attractive, but would instead occur because the employer-given his or her unique sexual orientation-found the employee attractive specifically because of his or her gender.

This ruling will give employers a free pass to terminate employees based solely on their gender, as long as the employer can claim that s/he happens to be attracted to that particular gender. If that’s not impermissible gender discrimination, then I’m not sure what is.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

 

Westchester County Human Rights Commission's Powers Expanded

Westchester County practitioners take note.  Last week the Westchester County Board of Legislators passed a measure that substantially expanded the enforcement powers of the Commission. 

As reported in this Lower Hudson Online article:

The Board of Legislators, in a unanimous vote last night, approved a measure that expands the enforcement power of the commission, including the ability to impose civil fines of up to $100,000 in housing discrimination cases and the power to seek punitive damages of up to $10,000 for any discriminatory behavior it deems egregious...

The commission handles cases of discrimination in the workplace, housing, lending and businesses of "public accommodation," such as restaurants and theaters. Its protections span such categories as race, disability, national origin, religion, gender, marital status and sexual orientation. Last year, its protections were extended to victims of domestic abuse.

NY Court of Appeals Considers Standard to Be Applied Under Employee Choice Doctrine

In Morris v Schroder Capital Mgt. Intl. & Schroder Inv. Mgt. N. Am. Inc., 2006 NY Slip Op 08638, the New York Court of Appeals considered the following certified questions from the United States Court of Appeals for the Second Circuit:

(1) Is the factual determination of 'involuntary termination' (i.e., whether an employee quit or was fired) under the New York common law employee choice doctrine governed by the 'constructive discharge' test from federal employment discrimination law?    

(2) If not, what test should courts apply?

In Morris, the plaintiff sued and alleged that his former employer had forced his resignation by reducing his job responsibilities and sought recovery of compensation benefits that he alleged were due to him.  The defendant alleged that the plaintiff had forfeited his compensation benefits since he had violated a non-compete clause in his employment contract and further alleged that the plaintiff's claims were barred by New York's "employee choice" doctrine, which is an exception to New York's general disfavor of non-compete clauses in employment contracts, and applies when an employer conditions receipt of post-employment benefits upon compliance with a restrictive covenant. 

As the Court explained in its decision:

The (employee choice) doctrine rests on the premise that if the employee is given the choice of preserving his rights under his contract by refraining from competition or risking forfeiture of such rights by exercising his right to compete, there is no unreasonable restraint upon an employee's liberty to earn a living...An essential element to the doctrine is the employer's "continued willingness to employ" the employee...In some circumstances, an employee's decision to resign from his job may not be a free and voluntary choice. Federal courts created the constructive discharge test in the context of employment discrimination cases for determining whether the employee's resignation was "voluntary"... In order to meet this threshold, "the trier of fact must be satisfied that the ... working conditions [were] so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign"...(Internal citations omitted).

The Court then concluded that the constructive discharge test applies in the context of the employee choice doctrine since "(t)he sense and purpose of the "employee choice" doctrine is that an employee is given a choice in either preserving his rights under an employment contract by not competing or losing them by engaging in competition...(A)n employer should not be permitted to enforce an unreasonable non-compete clause and simultaneously deny the employee his benefit under the guise of the employee choice doctrine."

In so holding, the Court rejected the plaintiff's argument that the appropriate standard was whether the employer was willing to employ the worker in a same or comparable job.

Not exactly great news for employees in our fine state.  This is a holding that employees may well want to consider prior to giving notice to their employers.  From now on, if your contract provides for post-employment benefits contingent upon compliance with a covenant not to compete, make sure that your working conditions are downright unbearable prior to telling your boss to "take this job and shove it".

Are Transgendered Individuals a Protected Class Under the NY Human Rights Law?

UPDATE:  If this topic interests you, there's a fairly lively discussion regarding this decision in the comments section of this post over at the Majikthise blog.

According to Judge Lefkowitz, a Supreme Court judge in Westchester County, the answer is "yes".  As reported in this article, the issue was decided in the case of Buffong v. Castle on the Hudson:

A state court has held in an apparent case of first impression that New York state's Human Rights Law protects transgendered individuals.

"Transgendered persons are either male or female," Westchester Supreme Court Justice Joan B. Lefkowitz held in Buffong v. Castle on the Hudson, 11634/05. "Case law supports the view that a transgendered person states a claim pursuant to New York State's Human Rights Law on the ground that the word 'sex' in the statute covers transsexuals"...

While at least one federal decision has held that the state's Human Rights Law, which does not specifically refer to transgendered individuals, nonetheless applies to them — Rentos v. Oce-Office Systems, 1996 WL 737215 — this case marks the first time a state court has done so, according to the decision and papers submitted by both sides.

In this case, the plaintiff worked as a line cook at a restaurant and it was eventually discovered by his co-workers that "he" was actually "she" in wolf's clothing.  In his lawsuit, he alleged that after 4 months of harassment by his co-workers he was terminated based upon his status as a transgendered individual.

The defense argued that transgendered individuals were intentionally excluded from the Human Rights Law, while the plaintiffs argued that they were not necessarily excluded simply by virtue of that fact.  In reaching its decision the Court stated: 

Unlike the New York City Human Rights Law which specifically includes transgendered persons . . . the New York State Legislature has not adopted proposed legislation that would accomplish that fact...

Nonetheless, prior to amendments to the New York City Code to specify transgendered persons as included persons, the courts had held that the prior definition, similar to the State definition . . . did cover transgendered persons..."

This Court agrees that plaintiff's claim falls within the liberal interpretation to be accorded to the New York State Human Rights Law.

This is an interesting decision and one that I expect will be appealed.  I wonder if the appellate courts will overturn it?

And, it raises an interesting philosophical issue.  As it stands now, the Human Rights Law protects one from discrimination based upon one's gender.  But, is the alleged discrimination that occurred in this case based upon the plaintiff's gender or the fact that the plaintiff chose to dress in a way that was not consistent with her gender?   How different is the alleged harassment in this case from that that one would encounter if one chose to wear a clown suit at all times?

Personally, I think that transsexuals and transgendered people should be protected from discriminatory harassment, etc. based upon their status.  But, I'm not sure that I buy the rather liberal interpretation that the courts are applying to the protected class based upon one's "sex." But, then again, I haven't read the line of cases that have lead up to this conclusion. Nevertheless, the best fix would be to amend the Human Rights Law in order to avoid this logical leap. 
 

Two Blogs of Interest

A few weeks ago I posted about the release of Douglas Warney following the reversal of his conviction for murder based upon newly discovered DNA evidence.  One of the issues of concern in Mr. Warney's case that is now receiving some media attention is that of false confessions.  Some are now advocating for mandatory videotaping of all police interrogations in order to reduce the number of false confessions. 

There's a relatively new blog on the issue of false confessions that's worth a look.  It's called The Truth About False Confessions and it examines the problems with the current system that lead to false confessions and chronicles cases where people are vindicated after being convicted based upon false confessions.  The blog is written by Alan Hirsch, a professor of legal studies at Williams College. 

Also of interest is the ACLU's blog and one of the cases that is being followed on the blog, Lochren v. Suffolk County.  The case alleges that the Suffolk County Police Department discriminated against women police officers by denying them access to desk jobs during their pregnancies, while allowing men greater access to limited duty jobs.

The case is currently being tried in the United States District Court for the Eastern District of New York before Magistrate Judge Arlene Lindsey and periodic reports regarding the trial's progress are posted on the blog..  The complaint in that case can be found here. 

It's an interesting case that raises some important issues.  And, I find it intriguing to read trial updates on the blog--almost in real-time.  It's yet another "new frontier" that would not be available but for the blogging format.

Disciplinary Proceeding Can Proceed Despite Pending Criminal Charges

There is a recent Fourth Department decision that might be of interest to those of you who handle public sector labor law matters.  In Matter of Watson v City of Jamestown, 2006 NY Slip Op 02078, the Court considered the issue of whether a disciplinary proceeding against a police officer should be stayed pending resolution of related criminal charges against the officer. 

The Court concluded that:

"Prohibition is an extraordinary remedy to be granted only if action taken or to be undertaken is clearly without jurisdiction or in excess of jurisdiction" (Matter of Mountain, 89 AD2d 632, 633). "[A] criminal defendant has no right to stay a disciplinary proceeding pending the outcome of a related criminal trial" (id.; see Matter of Geary, 80 Misc 2d 963, 965). We reject the contention of petitioner that a stay is required in order to protect his constitutional rights.

I'm not sure where the other Departments stand on this issue, but this decision is worth taking note of for those who handle these types of matters in the Fourth Department.