Hostile Work Environment Based on Race, Religion, National Origin, Age or Disability in New York

Hostile work environment law in New York is not limited to sexual harassment. The New York State Human Rights Law (NYSHRL) names harassment because of every characteristic on its list, the New York City Human Rights Law (NYCHRL) asks whether a person was treated less well because of a protected characteristic, and federal courts in New York apply the Title VII hostile work environment standard to race, color, religion and national origin and to disability claims under the Americans with Disabilities Act.⁠^[1][9][2][3] For age, the EEOC lists older age among the bases of unlawful harassment under federal law.⁠^[10]

What changes from one characteristic to another is which statute applies, which employers it covers, and in a few cases the time limit and the people who can be sued; the federal age statute, for example, has its own 20-employee threshold, and the federal race statute, 42 U.S.C. § 1981, has its own 4-year limitations period and allows claims against individuals.⁠^[11][6][12] This guide goes characteristic by characteristic. For the tests themselves, start with what a hostile work environment is in New York.

Each layer's test and the characteristics it covers

Federal law. Title VII prohibits discrimination in the terms, conditions or privileges of employment because of race, color, religion, sex or national origin.⁠^[13] The EEOC's sexual harassment regulation states that its principles continue to apply to race, color, religion or national origin, and the Second Circuit (the federal appeals court that covers New York) applies a single standard: a workplace permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of employment.⁠^[2] The EEOC describes harassment as a violation of Title VII, the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA).⁠^[10]

New York State law. The NYSHRL's harassment provision covers harassment because of an individual's age, race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status or status as a victim of domestic violence.⁠^[1] For every one of them the test is the same: harassment is unlawful when it subjects the individual to inferior terms, conditions or privileges of employment, regardless of whether it would be considered severe or pervasive.⁠^[1]

New York City law. The NYCHRL has no stand-alone harassment section. Harassment is treated as discrimination in the terms, conditions or privileges of employment, and the question is whether the employee was treated less well than other employees because of a protected characteristic.⁠^[7][9] The City statute's employment list covers actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service, height, weight, and immigration or citizenship status.⁠^[8]

Basis	Federal law	New York State (NYSHRL)	New York City (NYCHRL)
Race and color	Title VII; also 42 U.S.C. § 1981.⁠[13][14]	Listed; "race" includes traits historically associated with race, including hair texture and protective hairstyles.⁠[1][15]	Listed in § 8-107(1)(a).⁠[8]
Religion	Title VII lists "religion."⁠[13]	The statutory word is "creed."⁠[1][16]	The statutory word is "creed."⁠[8]
National origin	Title VII; EEOC national-origin guidelines.⁠[13][17]	Listed, and includes ancestry; citizenship or immigration status is a separate listed category.⁠[15][18]	Listed, and includes ancestry; immigration or citizenship status is also listed.⁠[19][8]
Age	ADEA; the EEOC describes the protected group as older age, beginning at age 40.⁠[20][10]	Listed in the harassment provision; the State age provision protects individuals eighteen years of age or older.⁠[1][21]	Listed in § 8-107(1)(a).⁠[8]
Disability	ADA; hostile work environment claims recognized by the Second Circuit in 2019.⁠[3]	Listed, along with predisposing genetic characteristics.⁠[1]	Listed in § 8-107(1)(a), actual or perceived.⁠[8]
Smallest covered employer	15 employees under Title VII and the ADA; 20 under the ADEA; no threshold in § 1981.⁠[22][23][11][4]	All employers within the state.⁠[24]	Generally four or more persons in the employer's employ.⁠[25]

Race and color

Race-based harassment is the context in which New York's highest court once described the older State test, calling a racially hostile work environment one "permeated with discriminatory intimidation, ridicule, and insult."⁠^[26] That older severe-or-pervasive test now governs State-law claims only if they accrued before October 11, 2019.⁠^[27][26] For later conduct, the State's inferior-terms test applies to race as it does to every other listed category.⁠^[1]

The EEOC gives these examples of harassing conduct under federal law: saying or writing an ethnic, racial or religious slur, and displaying symbols such as a noose, religious or ethnic hate symbols, or racist cartoons.⁠^[28] Under federal law in the Second Circuit, discriminatory remarks made in the employee's presence but not aimed at the employee can also contribute to a hostile work environment.⁠^[29]

Under New York State law, the definition of race reaches hair: it includes traits historically associated with race, including hair texture and protective hairstyles such as braids, locks and twists.⁠^[15]

Section 1981: a second federal law for race

42 U.S.C. § 1981 gives all persons the same right to make and enforce contracts as is enjoyed by white citizens, and since 1991 that expressly includes the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.⁠^[30] It applies to private employers and reaches discrimination during employment.⁠^[14] The Second Circuit applies the Title VII hostile work environment standard to § 1981 claims.⁠^[31][2]

The Supreme Court has described the remedies under Title VII and § 1981 as separate, distinct and independent, and the two differ in ways that can matter in a race harassment case:⁠^[5]

• Employer size. The text of § 1981 contains no employee-count threshold, while Title VII applies only to employers with 15 or more employees.⁠^[4][22]
• No agency step. Filing an EEOC charge is not a prerequisite to a § 1981 lawsuit, and filing one does not pause the § 1981 limitations period.⁠^[5]
• Deadline. Hostile work environment claims under § 1981 are governed by a federal 4-year statute of limitations.⁠^[6]
• Damages caps. The Title VII caps on compensatory and punitive damages do not limit the relief available under § 1981.⁠^[32]
• Individuals. Individuals can be held liable under § 1981 if they were personally involved in the discrimination, while Title VII claims cannot be brought against individuals in the Second Circuit.⁠^[12][33]
• Government employers. In the Second Circuit, § 1981 does not provide a separate private right of action against state actors such as a city employer.⁠^[34]

The text of § 1981 compares the rights it protects to those "enjoyed by white citizens"; it does not mention sex, religion, age or disability.⁠^[35]

Religion (creed)

Title VII uses the word "religion."⁠^[13] The State and City statutes use "creed" instead, and "religion" does not appear by that word in the State list.⁠^[16][8] Among the EEOC's examples of harassing conduct under federal law is threatening or intimidating a person because of their religious beliefs, their religious attire, or their lack of religious beliefs.⁠^[28]

National origin, ancestry and immigration status

Under federal law, the EEOC's national-origin guidelines state that harassment on the basis of national origin violates Title VII, and that ethnic slurs and other verbal or physical conduct relating to national origin are harassment when the conduct has the purpose or effect of creating an intimidating, hostile or offensive working environment or of unreasonably interfering with work performance.⁠^[17] Mocking a person's accent is one of the EEOC's examples of harassing conduct.⁠^[28]

Under both the State and City statutes, "national origin" includes ancestry.⁠^[15][19] New York State added "citizenship or immigration status" as its own protected category by a law signed on December 23, 2022, and effective immediately.⁠^[18] The City list separately includes immigration or citizenship status.⁠^[8] The guide on immigrant workers' rights covers this category.

Age

The federal ADEA makes it unlawful to discriminate against an individual in the terms, conditions or privileges of employment because of age.⁠^[20] The ADEA's prohibitions are limited to individuals who are at least 40 years of age, and the statute applies to employers with 20 or more employees.⁠^[36][11] The EEOC lists older age, beginning at age 40, among the bases of unlawful harassment; that is an agency summary, not a court ruling, and this page does not cover how courts treat an age-based hostile work environment claim under the ADEA.⁠^[10] In New York a federal age charge is due at the EEOC within 300 days of the alleged harm.⁠^[37]

New York State law is written without that age floor. Age is listed in the State harassment provision, and the State's age-discrimination provision protects individuals eighteen years of age or older.⁠^[1][21] The New York City Human Rights Law lists age among the protected characteristics in § 8-107(1)(a), and the NYC Commission on Human Rights lists a legal enforcement guidance on age discrimination.⁠^[8][38]

Disability

In 2019 the Second Circuit joined other federal appeals courts in holding that hostile work environment claims are cognizable under the ADA. The federal test is the same as under Title VII: harassment sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, plus a specific basis for imputing the conduct to the employer.⁠^[3] Imitating a person's disability-based limitations is one of the EEOC's examples of harassing conduct.⁠^[28]

Under the NYSHRL, harassment because of disability or predisposing genetic characteristics is unlawful regardless of whether it would be considered severe or pervasive, when it subjects the person to inferior terms, conditions or privileges of employment.⁠^[1] The City law protects actual or perceived disability, so a person harassed because the employer believes they have a disability is covered whether or not they do.⁠^[8] The separate guide on disability harassment goes deeper, and what counts as a disability explains the three definitions.

Harassment because of someone you are associated with

The New York City Human Rights Law prohibits discrimination against a person because of the actual or perceived race, creed, color, national origin, disability, age, sexual orientation, uniformed service or immigration or citizenship status of someone with whom that person has a known relationship or association.⁠^[39] The guide on perceived disability and association discrimination covers the federal and State position.

What stays the same whatever the basis

Under every layer the conduct has to be because of the characteristic: federal law does not prohibit all harassment at work, the State statute ties harassment to membership in a protected category, and the City law is not a general civility code.⁠^[40][1][41] Under State and City law it is an affirmative defense that the conduct was no more than what a reasonable victim of discrimination would consider petty slights or trivial inconveniences.⁠^[1][42] Whether the employer answers for a supervisor's or coworker's conduct follows the rules in the guide on supervisor versus coworker harassment.

What people commonly get wrong

• "Hostile work environment means sexual harassment." The State statute names harassment for every protected characteristic on its list, and the federal regulation applies the same principles to race, color, religion and national origin.⁠^[1][2]
• "Section 1981 covers sex or disability too." Its text refers to the rights "enjoyed by white citizens" and does not mention sex or disability.⁠^[35]

For the full lists, see protected characteristics in New York; for the size rules, see which employers are covered; and for time limits, see the deadlines guide.