The "Petty Slights or Trivial Inconveniences" Defense in New York Harassment Cases

The "petty slights or trivial inconveniences" defense is the lower limit of a harassment claim under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL). Both laws treat it as an affirmative defense: the State statute uses those words, and under the City law the employer has the burden of proving that the conduct was trivial.⁠^[1][2] It is the floor that remains now that neither law makes "severe or pervasive" conduct a condition of liability; the court that first recognized it said it narrowly targets truly insubstantial cases.⁠^[1][8][3]

What the State statute says

The NYSHRL puts the defense in the same paragraph that defines unlawful harassment, N.Y. Executive Law § 296(1)(h):⁠^[1]

"It shall be an affirmative defense to liability under this subdivision that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences."⁠^[1]

That paragraph took effect on October 11, 2019, and applies to claims that accrued on or after that date.⁠^[9] State claims that accrued earlier are governed by the former severe or pervasive test.⁠^[10] See where "severe or pervasive" still applies. New York State's model sexual harassment prevention policy describes the result for employees this way: harassment "can be any harassing behavior that rises above petty slights or trivial inconveniences."⁠^[11]

Where the City version comes from

Under the NYCHRL the defense comes from case law. It was recognized by the Appellate Division, First Department, in Williams v. New York City Housing Authority (2009), the decision that rejected "severe or pervasive" for City-law claims.⁠^[8][2] The standard that decision put in its place is explained in New York City's "treated less well" standard. The court recognized that the broader purposes of the City law "do not connote an intention that the law operate as a 'general civility code,'" and chose an affirmative defense as the way to deal with that concern: 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."⁠^[12][2]

The Appellate Division, Second Department, adopted the same standard in 2011, and the federal Second Circuit applies it to NYCHRL claims heard in federal court.⁠^[13][2] In 2016 the City Council named the majority opinion in Williams in N.Y.C. Administrative Code § 8-130(c) as one of the decisions that correctly understood how the City law is to be construed.⁠^[14]

Who has to prove what

The order of proof matters, because the defense is often described backwards.

Step	New York State (NYSHRL)	New York City (NYCHRL)
What the employee shows	Harassment that subjected the employee to inferior terms, conditions or privileges of employment because of membership in a protected category⁠[1]	By a preponderance of the evidence, that the employee was treated less well than other employees because of a protected characteristic⁠[15]
What the employee does not have to show	That the harassment was severe or pervasive, or that another individual was treated better⁠[1]	That the conduct was severe or pervasive, or that it involved a tangible action such as hiring or firing⁠[8][16]
The affirmative defense	That the conduct does not rise above what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences⁠[1]	That the conduct was nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences⁠[2]

Under the NYCHRL, then, it is not the employee's job to prove that the conduct was serious: the Second Circuit has said that "the employer has the burden of proving the conduct's triviality."⁠^[2] The State statute calls its version "an affirmative defense to liability"; the burden wording quoted here comes from City-law decisions, not from the State statute.⁠^[1][2]

The defense is also separate from the question of motive. Under the NYCHRL a defendant is not liable if the plaintiff fails to show the conduct was caused at least in part by a discriminatory motive; that is the plaintiff's burden.⁠^[12][17] An argument that a manager was equally harsh to everyone goes to motive, which is a separate question from triviality.⁠^[17]

The "reasonable victim" viewpoint

Both New York laws measure triviality from the standpoint of a reasonable victim of discrimination. The State statute adds that this is a victim "with the same protected characteristic or characteristics" as the person bringing the claim.⁠^[1][2] Federal law uses different words for its own threshold: the objective severity of harassment is judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.⁠^[18]

New York State's model sexual harassment prevention policy, written for employers' internal rules, adds that the intent behind the behavior, such as making a joke, does not neutralize a harassment claim, and that the impact of the behavior on a person is what counts.⁠^[19] That is policy language published by the State, not a quotation from the statute.

How courts have described the line

The decisions described below are City-law decisions. They describe three zones.

• Conduct that is severe or pervasive. This would satisfy even the federal test.⁠^[20]
• The broad middle. Williams said the defense should not give license to "the broad range of conduct that falls between 'severe or pervasive' on the one hand and a 'petty slight or trivial inconvenience' on the other."⁠^[3] The same opinion observed that experience had shown a wide spectrum of harassment cases in that middle ground.⁠^[21]
• Truly insubstantial cases. These are what the defense is aimed at.⁠^[3]

Four decisions show where particular facts fell under the City law (more are collected in examples of a hostile work environment):

Case	Conduct	Result under the NYCHRL
Williams v. New York City Housing Authority (1st Dep't 2009)	Within the limitations period, comments made in the plaintiff's presence on one occasion, not directed at her, which she took as partly complimentary to a coworker	Held to be nothing more than petty slights or trivial inconveniences; the harassment claim failed⁠[22]
Nelson v. HSBC Bank USA (2d Dep't 2011)	Alleged racial harassment of four African-American bank employees	New trial ordered: the jury could have found the harassment, "while not severe and pervasive, constituted more than petty slights and trivial inconveniences"⁠[13][23]
Hernandez v. Kaisman (1st Dep't 2012)	Emails with sexual content and isolated comments about employees' bodies, including touching one employee	Not a "truly insubstantial case"; the City-law claim survived summary judgment⁠[24][25]
Mihalik v. Credit Agricole Cheuvreux North America (2d Cir. 2013)	Evidence of pornography shared in the office, rating of female employees' appearances, and two sexual propositions by a supervisor	A jury could find the conduct "neither petty nor trivial"; summary judgment for the employer vacated⁠[26]

Several points come out of these cases. First, courts consider the totality of the circumstances in evaluating both the claim and the defense.⁠^[4] In Hernandez the court said the emails viewed independently might not have been enough, but that the overall context in which they were sent could not be ignored.⁠^[25] Second, isolated does not mean trivial: even a single comment may be actionable in the proper context.⁠^[5] (See can one incident be a hostile work environment?) Third, the plaintiff's own reading of the events can matter; in Williams the court relied on the plaintiff's own experience and interpretation of the comments.⁠^[22]

The examples above are City-law examples; this page does not describe how courts have applied the State-law version of the defense in § 296(1)(h). What can be said about State law is what the statute says: the wording of the defense, the "same protected characteristic or characteristics" viewpoint, and the instruction that the NYSHRL be construed liberally regardless of how comparably worded federal laws have been read.⁠^[1][27]

Judge or jury?

An employer can ask the court to rule on the defense before trial through a motion for summary judgment (a request for judgment without a trial because no reasonable jury could find for the other side). Under the NYCHRL, summary judgment based on triviality is available only if a reasonable jury could not interpret the alleged conduct as anything more than petty slights or trivial inconveniences.⁠^[28] Williams said that summary judgment remains available where the conduct "does not represent a 'borderline' situation," and said that borderline situations are generally for a jury.⁠^[28][3] See summary judgment in employment discrimination cases.

How the floor compares across the three layers

Layer	Minimum level of conduct	How that point is assigned
Federal (Title VII)	Severe or pervasive enough to alter the conditions of employment and create an abusive working environment⁠[20]	The employee must plead and show it to establish the claim⁠[6][7]
New York State (NYSHRL)	Above petty slights or trivial inconveniences⁠[1]	The statute calls it an affirmative defense to liability⁠[1]
New York City (NYCHRL)	Above petty slights and trivial inconveniences⁠[2]	The employer has the burden of proving triviality, as an affirmative defense⁠[2]

What the defense is not

• It is not a renamed "severe or pervasive" test. Under the NYCHRL, severity and pervasiveness are relevant to the scope of damages, not to liability.⁠^[8]
• It is not the Faragher-Ellerth defense. That federal defense turns on the employer's reasonable care to prevent and correct harassment and the employee's unreasonable failure to use the opportunities provided.⁠^[29] New York's highest court has held that the Faragher-Ellerth defense does not apply to sexual harassment and retaliation claims under the NYCHRL, and the NYSHRL says that not complaining to the employer "shall not be determinative" of the employer's liability.⁠^[30][1]
• It is not a defense to conduct that has nothing to do with a protected characteristic. Such conduct fails at an earlier step under both laws.⁠^[1][12] See bullying compared with illegal harassment.

Practical notes

For an employee, the usefulness of this rule is mostly in how events are recorded. Because context decides whether a remark is trivial, notes that capture who said what, who else was present, how often similar things happened and how the conduct affected the work are more useful than a bare list of comments. The guide to documenting workplace harassment covers this.

For a manager or small employer, the practical point is that a complaint should not be set aside on the assumption that the conduct sounds minor. Whether it is minor is judged in context and from the viewpoint described above, and triviality is an affirmative defense under both New York laws, one that under the City law the employer has the burden of proving.⁠^[1][2] Other defenses are collected in employer defenses in harassment and discrimination cases, and the standards themselves in what is a hostile work environment under New York law?