By: Thalia Olaya
In New York, at-will employees who are fired for being “cute” can now successfully sue for gender discrimination.[1] In New York State, employees are generally considered to be “at-will.”[2] In other words, in the private sector, an employer can essentially fire an employee for any or no reason.[3] This reason, however, cannot be discriminatory.[4]
Although some adverse employment actions may appear unfair or unreasonable, they do not always qualify, under the law, as workplace discrimination.[5] New Yorkers are entitled to protection against workplace discrimination under federal, state, and local laws.[6] The New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”), though, are broader than its federal counterpart.[7] Cuteness, however, is not a protected class mentioned under any of these laws.[8]
On August 22, 2017, in Edwards v. Nicolai, a New York State appellate court reversed the dismissal of a gender discrimination claim after an employee was fired because she was, “too cute.”[9] Charles Nicolai and Stephanie Adams, the two defendants, are married co-owners of a chiropractic and wellness clinic.[10] Plaintiff was hired by Nicolai in 2012 as a yoga and massage therapist, and became her supervisor.[11]
In 2013, Nicolai told Edwards that his wife might be jealous because Edwards was “too cute.”[12] Shortly thereafter, Adams sent Edwards a threatening text message telling her that she was no longer welcome at the clinic and to stay away from her husband and family.[13] A few hours later, Edwards received an email from Nicolai stating that she was fired.[14]
Edwards claimed in the complaint that her relationship with Nicolai was strictly professional, and she had no idea why Adams would be suspicious of their relationship.[15] Plaintiff’s complaint, however, did not state any facts alleging that she was ever subjected to sexual harassment at work.[16] The appellate court reversed the lower court’s dismissal of the gender discrimination claim and stated that even though Edwards was never subjected to sexual harassment while at work, “it is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination.”[17]
In other words, the court accepted Edwards’ allegations in her complaint that despite always behaving properly around Nicolai, she was fired for no other reason except for Adam’s jealousy and belief that Nicolai was sexually attracted to Edwards.[18] For these reasons, the court concluded that Edwards did in fact state a gender discrimination claim under both the NYSHRL and the NYCHRL.[19]
In sum, an important take-away from this case is that employers now have to be careful when terminating employees, including “cute” ones.[20] The bottom line, is that it is important that employers document any work and performance issues their employees have in order to support any of their future employment decisions.[21]
[1] Edwards v. Nicolai, 60 N.Y.S.3d 40, 42 (N.Y. App. Div. 1st Dept. 2017).
[2] Can You Be Fired?, N.Y. State Office of the Attorney Gen., https://ag.ny.gov/labor/can-you-be-fired (last visited Nov. 8, 2017).
[3] Can You Be Fired?, supra note 2.
[4] Employment Discrimination Laws, N.Y. State Office of the Attorney Gen., https://ag.ny.gov/civil-rights/employment-discrimination-laws (last visited Nov. 8, 2017).
[5] See Can You Be Fired?, supra note 2.
[6] Id.
[7] Tammy Marzigliano & Nicholas Sikon, As Discrimination and Harassment Rise, NYC Promotes Its Human Rights Law, Emp. L. Blog (Sept. 22, 2017), http://www.employmentlawblog.info/2017/09/as-discrimination-and-harassment-rise-nyc-promotes-its-human-rights-law.shtml.
[8] See 42 U.S.C.A. § 2000e-2(a)(2) (West 2017) (protecting employees from workplace discrimination based on “race, color, religion, sex, or national origin”); 29 U.S.C.A. § 623(a)(1)-(3) (West 2017) (protecting employees from workplace discrimination based on age); 42 U.S.C.A. § 12112(a) (West 2017) (stating that an employer cannot “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment”); N.Y. Exec. Law § 296(1)(a) (McKinney 2017) (stating that is unlawful discriminatory practice for an employer to discriminate against an employee “because of an individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status”); N.Y.C. Code § 8-107(1)(a) (prohibiting discrimination based on “the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual orientation or alienage or citizenship”).
[9] Edwards v. Nicolai, 60 N.Y.S.3d 40, 41 (N.Y. App. Div. 1st Dept. 2017).
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id. at 47.
[17] Id.
[18] Id.
[19] Id.
[20] See Barbara E. Hoey, Are “Cute” Employees A New Protected Class in New York?, Lab. Days Blog (Aug. 24, 2017), https://www.labordaysblog.com/2017/08/are-cute-employees-a-new-protected-class-in-new-york/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+labordaysblog+%28Labor+Days%29.
[21] Hoey, supra note 20.
The L•E•Jer 