Divided Appeals Court Preserves Harassment Claim Under NYC Anti-Bias Law | New York Law Journal

A five-judge panel from a Manhattan appeals court was split on what constitutes workplace discrimination under New York City’s broadly protective Human Rights Law with the majority finding for a woman who alleges that her boss made her life at work miserable after she rebuffed his sexual advances.

Justice Peter Moulton.

A five-judge panel from a Manhattan appeals court was split on what constitutes workplace discrimination under New York City’s broadly protective Human Rights Law, with the majority finding for a woman who alleges that her boss made her life at work miserable after she rebuffed his sexual advances.

The majority of the Appellate Division, First Department panel agreed that a trial court properly dismissed on summary judgment Rachana Suri’s claims brought under the New York state and New York City human rights laws that discrimination was the culprit in her firing from Grey Global Group, an international advertising firm in Manhattan, for lack of evidence.

But the issue that drove a rift between the justices on the panel was Suri’s gender discrimination claim brought under the New York City Human Rights Law, considered to be one of the strongest anti-discrimination laws in the United States—the majority found that Suri provided sufficient evidence to allege that Pasquale Cirullo, her immediate supervisor, used his authority to “implicitly demand sexual favors, and, when she rebuffed him, to explicitly make her life miserable for the next 18 months.”

The decision came on a 3-2 vote.

According to the trial court opinion, Suri is a South Asian woman who started working with Grey in 2004 and began working under Cirullo in 2008.

Suri claimed that, when she started working for Cirullo, he complimented her on her appearance and, during a meeting, put his hand on her thigh under a table.

After she turned him down by moving away from him, she claims, Cirullo’s attitude toward her became more distant and disrespectful: he talked over her, put his hand in her face while she was talking, cut her out of meetings and emails, and mocked her in front of her other co-workers.

Cirullo denies complimenting Suri on her appearance or touching her leg and that the two maintained a cordial relationship.

Suri was laid off from her job in 2010, according to the appellate opinion.

Writing in dissent, Justice Marcy Kahn, who was joined by Justice David Friedman, said Suri’s hostile workplace claim fails because she did not prove that the discrimination she faced was sexually motivated and that the touching and compliments amounted to anything more than “petty slights.”

But, writing for the majority—which partially reversed Manhattan Supreme Court Justice Donna Mills’ ruling to grant summary judgment for the defendants—Justice Peter Moulton said that, while federal and state laws require a showing of “severe or pervasive” conduct to bring a sexual harassment claim, such a standard is too high for the New York City’s “broader and more remedial” Human Rights Law.

“The jury must decide whether Cirullo made a sexual overture, and whether Cirullo created a hostile work environment because Suri rebuffed that overture,” Moulton said. “Sexual advances are not always made explicitly.”

Moulton was joined in the majority by Justices Cynthia Kern and Jeffrey Oing.

Manhattan solo attorney Michael O’Neill, who represents Suri, said the First Department’s ruling is “bittersweet” since the court did not find for his client on all claims.

“We’re grateful that the majority recognized that when a supervisor puts his hand on the leg of a female and is rejected that his conduct toward her in the following 18 months can be viewed in the context of that rejected advance,” O’Neill said.

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