NY Appellate Court Reinstates 2009 Sex Bias Claim; NYCHRL only Requires Unfavorable Change in Job Terms to Show Discrimination

By Douglas Lipsky

In May 2019, the Appellate Division, Second Department reversed the 2016 Supreme Court ruling in Golston-Green v. City of New York. The Supreme Court dismissed the 2009 employment discrimination lawsuit against the New York City Police Department (NYPD) alleging gender discrimination in violation of the New York State and City Human Rights Laws. 

In its ruling, the Supreme Court held that: 

  1. The plaintiff failed to establish a material adverse change in circumstances to establish liability
  2. Allegedly harassing conduct was insufficiently severe or pervasive to alter the conditions of the plaintiff’s employment or to support a constructive discharge claim.

On appeal, the Second Department ruled that, under the NYCHRL, a plaintiff need not establish he or she was subjected to a material adverse change in the terms of conditions of employment to establish liability. Instead, it is only necessary to show that he or she was treated less well than other employees based on a protected characteristic. The Second Department also considered the “totality of the circumstances” in reinstating the gender discrimination claim alleging a hostile environment under the NYCHRL. 

This case highlights how legal protections against discrimination under the New York City Human Rights are construed more broadly than the protections under the applicable state and federal law. If you have been subjected to discrimination or harassment in the workplace, the best way to protect your right is to consult with an experienced employment lawyer.

The Backdrop

The plaintiff, Tamara Golston-Green, began working as a police officer with the NYPD in December 1997 and was promoted to the rank of sergeant in September 2004. She was transferred to an assignment under a police captain who allegedly prevented her from advancing because she had children. 

The captain assigned her to overnight shifts after she had two children, forcing Golston-Green to quit the department in 2006. Golston-Green, an African-American woman, filed suit in 2009 claiming employment discrimination based on race and pregnancy. Golston-Green also alleged she was subjected to a hostile work environment based on a series of comments that were more than “trivial inconveniences.” The New York State Supreme Court dismissed the lawsuit in January 2016. 

The Second Department Ruling in Golston-Green v. City of New York

In sum, the Second Department rejected the Supreme Court’s interpretation of the New York City Human Rights Law, finding that the court erred in analyzing the law under the same standard as the New York State Human Rights Law. 

Under the NYCHRL’s broader standard, a plaintiff need not establish a “materially adverse change” to his or her employment conditions for a discrimination claim, but need only show an unfavorable change or being treated less well than others on the basis of a protected characteristic.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.