New York City's "Treated Less Well" Standard for Harassment Claims

Under the New York City Human Rights Law (NYCHRL), a harassment or hostile work environment claim turns on one question: has the employee proven, by a preponderance of the evidence, that they were treated less well than other employees because of a protected characteristic?⁠^[1] The employee does not have to show that the conduct was "severe or pervasive."⁠^[2] The employer, for its part, can defeat the claim by proving that the conduct was nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences.⁠^[4]

This page covers the City standard only. The federal and New York State standards are different and are set out in what is a hostile work environment under New York law?

Where the standard comes from

The NYCHRL is title 8 of the New York City Administrative Code.⁠^[7] It has no stand-alone harassment provision. Harassment claims are brought under § 8-107(1)(a)(3), which forbids discrimination "in terms, conditions or privileges of employment," and courts treat harassment "as in other terms and conditions cases."⁠^[8]

The "treated less well" wording is the courts' reading of that provision in light of the statute's rule of construction:

• Section 8-130(a). The City law "shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof," regardless of whether comparably worded federal or New York State laws have been so construed.⁠^[5]
• The 2005 Restoration Act. Interpretations of similarly worded State or federal provisions may be used only as "a floor below which the City's Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise."⁠^[9]
• Independent analysis. Courts must analyze NYCHRL claims separately and independently from any federal and State law claims.⁠^[10]
• The Court of Appeals. New York's highest court has said the City law must be construed broadly in favor of discrimination plaintiffs, to the extent such a construction is reasonably possible.⁠^[11]

The four decisions to know

Decision	Court and year	What it established for City-law claims
Williams v. New York City Housing Authority	Appellate Division, First Department, 2009	The primary issue is whether the plaintiff was treated less well because of gender; severity and pervasiveness go to damages; the employer has a petty-slights affirmative defense⁠[1][2][4]
Nelson v. HSBC Bank USA	Appellate Division, Second Department, 2011	Adopted the Williams standard in a race case and ordered a new trial because the jury had been told "severe and pervasive" conduct was an element⁠[12][13]
Hernandez v. Kaisman	Appellate Division, First Department, 2012	Conduct too sporadic for the State standard of that time could still support a City-law claim; context controls⁠[14][15]
Mihalik v. Credit Agricole Cheuvreux North America	U.S. Court of Appeals, Second Circuit, 2013	Federal courts must apply the City standard, not the federal quid pro quo and severe-or-pervasive frameworks, to NYCHRL claims⁠[16][2]

In 2016 the City Council amended § 8-130 to name the majority opinion in Williams, along with Albunio v. City of New York and Bennett v. Health Management Systems, as cases that correctly understood and analyzed the liberal-construction requirement.⁠^[6] The Hernandez ruling on the State-law claim was made under the State standard in force in 2012, which the State Legislature replaced in 2019; it is not a statement of current State law.⁠^[14][17]

What the employee has to show

1. Worse treatment. The employee was treated less well than other employees. The conduct need not be tangible, like hiring or firing.⁠^[1][18]
2. Because of a protected characteristic. The plaintiff bears the burden of showing that the conduct was caused by a discriminatory motive, at least in part.⁠^[3][19]
3. By a preponderance of the evidence. Williams and Mihalik both state the test with that standard of proof, which asks whether something is more likely than not.⁠^[1]

Several things are not part of the employee's case under the City law:

• Proof that the conduct was severe or pervasive.⁠^[2]
• Proof of repeated conduct. Even a single comment may be actionable in the proper context.⁠^[20]
• Proof that discrimination was the only motive. It is enough that it was one of the motivating factors.⁠^[21]
• A good performance record. As the Second Circuit put it, even a poorly performing employee is entitled to an environment free from sexual harassment.⁠^[18]

Courts consider the totality of the circumstances, because the overall context in which the conduct occurred cannot be ignored.⁠^[22]

What the employer has to prove

Once differential treatment because of a protected characteristic is shown, the burden on triviality sits with the employer. Williams recognized "an affirmative defense whereby defendants can still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider 'petty slights and trivial inconveniences.'"⁠^[4] The court said it was narrowly targeting truly insubstantial cases while avoiding giving license to the broad range of conduct between "severe or pervasive" and a petty slight.⁠^[23] The guide to the petty slights defense covers it in full.

The City law does not accept the federal Faragher-Ellerth defense, under which an employer points to its complaint procedure and the employee's failure to use it; the Court of Appeals held in 2010 that the plain language of the NYCHRL precludes that defense for sexual harassment and retaliation claims.⁠^[24]

Not a civility code

The standard has a limit that is easy to overlook. The First Department said the broader purposes of the City law "do not connote an intention that the law operate as a 'general civility code.'" The Second Circuit drew the practical consequence: "It is not enough that a plaintiff has an overbearing or obnoxious boss."⁠^[3] A manager who is unpleasant to everyone, for reasons unconnected to any protected characteristic, has not treated anyone less well because of that characteristic. See bullying compared with illegal harassment.

How the cases have come out

• Claim failed. In Williams, the only timely conduct was a set of comments made in the plaintiff's presence on one occasion, not directed at her, which she perceived as partly complimentary to a coworker. The court held these were nothing more than petty slights or trivial inconveniences.⁠^[25]
• Claim survived summary judgment. In Hernandez, the court found that comments and emails objectifying women's bodies, "even if considered 'isolated,'" signaled that the defendant considered it appropriate to foster an office environment that degraded women.⁠^[15]
• Claim sent to trial. In Mihalik, there was evidence that men in the office openly viewed and shared pornography and rated female employees' appearances, and that the plaintiff's supervisor twice propositioned her. The Second Circuit held a jury could find she was treated less well than her male colleagues because of her gender and that the conduct was neither petty nor trivial.⁠^[26]
• New trial ordered. In Nelson, the Second Department said the jury could reasonably have found harassment that, "while not severe and pervasive, constituted more than petty slights and trivial inconveniences."⁠^[12]

These outcomes turned on their records. In Mihalik and Hernandez the courts were reviewing summary judgment, so they described evidence a jury could credit rather than facts that had been found.⁠^[26][14]

Mixed motives and summary judgment

Two further City-law rules shape how a "treated less well" claim is litigated. First, a plaintiff should prevail if unlawful discrimination was one of the motivating factors, even if not the sole one.⁠^[21] Second, on a motion for summary judgment (a request to end the case without a trial), the employer bears the burden of showing that no jury could find it liable under any of the evidentiary routes: the McDonnell Douglas framework, mixed motives, or direct or circumstantial evidence.⁠^[27] On the triviality defense specifically, summary judgment is available only if a reasonable jury could not interpret the alleged conduct as anything more than petty slights or trivial inconveniences.⁠^[28]

See summary judgment in employment discrimination cases and how discrimination is proved.

Who and where the City standard reaches

The standard reaches only the employers, people and places that the City law itself reaches.

• Employer size. The City law generally does not cover an employer that had fewer than four persons in its employ at all times from twelve months before the discriminatory practice began through its end. A claim of gender-based harassment can be brought against any employer.⁠^[29][30]
• Who is protected. The employee protections apply to interns, freelancers and independent contractors as well.⁠^[31]
• Place. A person who does not live in New York City must plead and prove that the alleged discriminatory conduct had an impact within the city; non-residents who work in the city are protected.⁠^[32][33]
• Characteristics. Section 8-107(1)(a) covers sixteen listed characteristics, actual or perceived.⁠^[34]

See the New York City Human Rights Law explained and whether New York law applies to remote workers.

Who answers for the conduct

Whether the employer is responsible is governed by a separate subdivision, § 8-107(13). An employer is liable for the discriminatory conduct of an employee or agent who exercised managerial or supervisory responsibility.⁠^[35] For other employees, the employer is liable if it knew of the conduct and acquiesced or failed to take immediate and appropriate corrective action, or should have known and failed to exercise reasonable diligence to prevent it.⁠^[36][37] See employer liability for harassment by supervisors and coworkers and can I sue my boss personally?

Severity still matters for damages

Removing severity and pervasiveness from liability did not make them irrelevant. They apply to "the scope of permissible damages."⁠^[2] In court, a City-law plaintiff may recover damages, including punitive damages, and § 8-502 sets no dollar cap on them.⁠^[38] The statute describes what may be recovered, not what any particular case will produce; see damages in New York employment cases.

Deadlines and where to bring a City-law claim

A person may sue in court under the NYCHRL without filing with an agency first, and the action must be commenced within three years after the alleged discriminatory practice.⁠^[38][39] A complaint to the NYC Commission on Human Rights must be filed within one year after the alleged discriminatory practice, or within three years after the alleged harassing conduct for a claim of gender-based harassment.⁠^[40][41] A person who has filed a complaint about the same practice with the City Commission or the State Division of Human Rights generally cannot also bring a City-law court action.⁠^[38] The details are in the NYC Commission on Human Rights complaint process and election of remedies.

What people commonly get wrong

• "Anything rude is illegal in New York City." A discriminatory motive is still required, and the employer has the petty-slights defense.⁠^[3][4]
• "The employee has to prove the conduct was more than a petty slight." Triviality is an affirmative defense that the employer has the burden of proving.⁠^[4]
• "The City standard is the New York standard." It is the City's. New York State has its own statutory test in N.Y. Executive Law § 296(1)(h), and federal Title VII keeps "severe or pervasive."⁠^[42][43]