In 2005, New York City passed the Civil Rights Restoration Act amendments to the New York City Human Rights Law (NYCHRL). Given the language and legislative history of these amendments, many courts have since recognized that the burden on an employee to establish discrimination under the NYCHRL is significantly more lenient than under both federal and state law. In Williams v. New York City Housing Authority, for example, the NYCHRL was interpreted to require an independent and broader construction than its federal and state counterparts, Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law (NYSHRL).

The First Department went on to hold that in harassment cases, as in other terms and conditions cases, the burden on an employee is to prove by a preponderance of the evidence that she has been treated less well than other employees because of her protected status. The court then recognized an affirmative defense that the “conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider ‘petty slights and trivial inconveniences.’” The Williams court granted the defendant summary judgment because it determined that the complained-of harassment—which consisted of a supervisor’s remark to the plaintiff when she requested shower facilities that “you can take a shower at my house,” coupled with a second incident in which the plaintiff witnessed sex-based remarks directed at another employee—were petty slights or trivial inconveniences.

Originally published in InsideCounsel on May 13, 2013.