Paul Millus Authors, "Microaggressions - The Next Frontier In Discrimination Litigation?"

Microaggression is a term first introduced by Harvard Professor and Psychiatrist Chester Pierce in the 1970s to describe insults by non-black Americans on African Americans.[i] In 1973, economist Mary Rowe expanded the reach of microaggressions to include women and varying religious groups. Psychologist Debra Wing Sue describes the terms microaggressions as “everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, which communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership.”[ii] Microaggression theory has even been used to question whether there is implicit bias in the justice system particularly based on race.[iii] Based on a review of reported decisions, no case has addressed whether a microaggression could be the basis of an employment discrimination suit. Such acts are recognized and dismissed as innocent banter, but now they may be the basis of a claim.

Clearly, the concept that a microaggression could be viewed as is an impermissible action is coming to the fore. In June of 2016, the University of North Carolina created a list of phrases whose use was discouraged at the school. These included mentioning Christian holidays such as Christmas, using the words “husband and wife”, asking a fellow student to go play a round of golf or even mentioning to a women that you liked their shoes. The words were categorized into sections that included “Race”, “Gender Identity”, “Religious” and “Ability” and were deemed to be “microaggressions.”[iv] Also, the U.S. State Department weighed in on the subject. According to a letter published in the November, 2015 edition of State Magazine titled “The New Face of Exclusion: Microaggressions” the State Department Chief Diversity Officer cautioned employees who commit “microaggressions” that they may risk violating harassment laws in doing so. He noted that micro aggressions “are much harder to spot than overt discrimination” and “are often brushed off as lack of tact or an act of non-malicious ignorance.”[v]

This begs the question: is it possible that what was previously viewed as offhand innocent sounding workplace banter will provide a basis for a discrimination lawsuit in the future? Based on current trends, an employer should not be surprised that a few non-descript words may lead to the filing of a complaint in court or with a governmental agency.

Title VII and the New York Human Rights Law

For harassment to be actionable, such as in the case of a hostile work environment claim, the standard was set in 1986 when the Supreme Court stated that, for a claim to be actionable under Title VII, the conduct “must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” The Court also added that the “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” does not sufficiently affect the conditions of employment to implicate Title VII.[vi] Couple that with well-settled law that “[t]itle VII is not a general civility code,”[vii] and that sporadic, isolated incidents of “boorish or offensive use of language” are insufficient to establish a hostile work environment, it is unlikely that we will see microaggressions become actionable under Title VII.[viii] The same would be reached with regard to claims under the New York Human Rights Law (NYHRL), as the standards that apply to employment discrimination claims brought under both Title VII and NYHRL are identical.[ix] However, the same might not be said if the right claim were brought under the New York City Human Rights Law (NYCHRL).

The NYCHRL

Prior to 2005, courts construed the NYCHRL to be coextensive with Title VII and the NYHRL.[x] In 2005 the New York City Council amended the NYCHRL by passing the Local Civil Rights Restoration Act of 2005 (the “Restoration Act”), which changed everything.[xi] First, it created a “one-way ratchet,” by which interpretations of state and federal civil rights statutes can serve only “as a floor below which the City's Human Rights law cannot fall.”[xii] Second, it amended the NYCHRL to require that its provisions “be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title have been so construed.”[xiii]

The impact of the Restoration Act has been profound. Now, courts are required to conduct an independent analysis viewing NYCHRL claims separately and independently from any federal and state law claims and construing the NYCHRL’s provisions “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.”[xiv] In NYCHRL cases, the burden of proof to establish a hostile work environment claim has been lowered, such that a plaintiff can proceed with a claim by just demonstrating that they were treated “less well” than others.[xv]

With the purpose of the NYCHRL being to “make sure that discrimination plays no role” in the workplace and questions of severity and pervasiveness being relegated to the consideration of the scope of damages, who is to say that once harmless comments not even rising to the level of boorishness will be elevated to form the pillars of a lawsuit under a microaggression theory? [xvi] It is not as far-fetched as one might think. Consider the New York City Commission on Human Rights issuance of a “Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression” in 2015.[xvii] In that Guidance, the Commission states that it interprets the NYCHRL to require employers to use an individual’s preferred name, pronoun and title regardless of the individual’s sex assigned at birth, gender or appearance. Surely a plaintiff can make an argument that being called a name, even on a small number of occasions, that was contrary to the Guidance constituted a microaggression, thus morphing an otherwise harmless comment, or, at worst, a petty offense, into an actionable claim.

If it comes to this, employers will have their work cut out for them trying to figure out what can be said and done in the workplace without exposing them to real liability or simply to the costs associated with an otherwise frivolous suit. While one may disagree (or agree) with the trend of the law and the ever-evolving social mores, it is clear that employee training is more essential than ever to navigate the minefield that the workplace has become.

[i] Chester Pierce, Psychiatric Problems of the Black Minority, American Handbook of Psychiatry 512, 514 (S. Arieti ed. 1974)

[ii] Lukes and Bangs, A Critical Analysis of Anti-Discrimination Law and Microaggressions in Academia, Research in Higher Education Journal Volume 24, August 2014

[iii] Davis, Law as Microaggression, 98 Yale L.J. 1559 (1988)

[iv] http://m.washingtontimes.com/n...

[v] http://www.state.gov/documents...

[vi] Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 67 (1986) quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)

[vii] Bickerstaff v. Vassar College, 196 F.3d 435, 452 (2d Cir.1999).

[viii] Benette v. Cinemark U.S.A., Inc., 295 F.Supp.2d 243, 251 (W.D.N.Y. 2003), see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998); Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001)

[ix] Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937 (1985); Weinstock v. Columbia Univ., 224 F.3d 33 (2d Cir. 2000)

[x] Estate of Hamilton v. City of New York, 627 F.3d 50, 55 (2d Cir.2010); Leibowitz v. Cornell Univ., 584 F.3d 487 n.1 (2d Cir. 2009); Cruz v. Coach Stores, Inc., 202 F.3d 560 n. 1 (2d Cir. 2000)

[xi] N.Y.C. Local L. No. 85

[xii] N.Y.C. Local L. 85, § 1

[xiii] N.Y.C. Local L. 85, § 7 (amending N.Y.C. Admin. Code § 8–130), Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102 (2d. Cir. 2013)

[xiv] Albunio v. City of New York, 16 N.Y.3d 472, 477-478 (2011)

[xv] Williams v. New York City Housing Authority, 61 A.D.3d 62, 78 (1st Dep’t 2009)

[xvi] Id.

[xvii] N.Y.C. Comm’n on Human Rights, Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression: Local Law No. 3 (2002); N.Y.C. Admin Code §8-102(23) (2015)