Does harassment have to be “severe or pervasive” under New York City law?

Who does this apply to?

Anyone covered by the City law who has been harassed or treated worse because of a protected characteristic. See does the City law cover my employer?

The rules

• Treated less well. The “primary issue” is whether you were treated less well than other employees because of the protected characteristic (Williams v New York City Hous. Auth., 61 A.D.3d 62, 76–78 (1st Dep’t 2009)).
• The petty-slights defense. The employer avoids liability if it proves the conduct was nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences (61 A.D.3d at 80). The burden is on the employer (Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102, 111 (2d Cir. 2013)).
• Not a civility code. You still have to show that you were treated worse at least in part because of the protected characteristic, not just that your boss was unpleasant (Mihalik, 715 F.3d at 110).
• No “materially adverse” change required. The same approach applies to other unfair treatment, not just harassment (Golston-Green v City of New York, 184 A.D.3d 24, 38 (2d Dep’t 2020)).

What courts have said

In Williams the First Department adopted this standard but ruled for the employer: the only remarks within the limitations period were a single occasion, not directed at the worker, that she herself saw as partly complimentary. In Golston-Green the Second Department reinstated a police sergeant’s gender harassment claim based in part on her commander’s statement that he did not “like women on this job because they have babies.” In Mihalik the Second Circuit sent a sexual harassment case back for trial because the district court had applied the federal standard to the City claim.

State law now says harassment is unlawful “regardless of whether such harassment would be considered severe or pervasive” (Exec. Law § 296(1)(h)). The two laws are still analyzed separately.

What should I gather?

• Each incident, with the date, who was there and what was said.
• Messages that show the comments or the treatment.
• How coworkers outside your group were treated.
• Any complaint you made, and the response.